THE BOOK WAS
OU_1 64996 >
Sulaiman Research Series No. i
THE ALIGARH HISTORICAL RESEARCH
THE HON'BLE JUSTICE SIR S. M. SULAIMAN,
KT., LL.D., D.SC.
PROF. M. HABIB, B.A. (OXON.), BAR-AT-LAW.
Chairman Managing Committee
NAWAB SADR YAR JUNG BAHADUR.
A. YUSUF ALI, C.B.E., M.A., LL.M., I.C.S. (RETD.)
KHAN BAHADUR MAULVI HAJI MUHAMMAD
OBAIDUR RAHMAN KHAN SHERWANI, M.L.A.
MUHAMMAD BASHEER AHMAD, M.A., M.LITT.,
(CANTAB.) F.R. HIST, s., i.c.s. Chairman.
SIR ABDUL QADIR, KT., K.B., BAR-AT-LAW,
A. YUSUF ALI ESQR., C.B.E., M.A., LL.M. (CANTAB.),
MAULANA SAIYAD SULAIMAN NADVI SAHIB,
DR. SAIYAD MAHMUD, PH.D., EX-EDUCATION
PROF. MUHAMMAD HAROON KHAN SHERWANI,
M.A., (OXON), BAR-AT-LAW, F.R. HIST. S.,
OSMANIA UNIVERSITY, HYDERABAD, DAC-
PROFESSOR A. B. A. HALEEM, B.A. (OXON.) ALI-
SH. ABDUR RASHID, M.A., LL.B., (ALIG), ALIGARH
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*'*'' - >^/!>^x :: ;r- ''''
* * * mi* 1 *'^ ** ! ,j/ *
Copy of judgment in Saiyad Ghulam Mohi
Uddin w. Anbart, 1686 A.D. Baqiyat us
Salehat, page 9.
Aligath University Studies in History
The Administration of Justice
in Medieval India
A STUDY IN OUTLINE OF THE JUDICIAL SYSTEM
UNDER THE SULTANS AND THE BADSHAHS OF
DELHI BASED MAINLY UPON CASES DECIDED
BY MEDIEVAL COURTS IN INDIA BETWEEN
MUHAMMAD BASHEER AHMAD
M.A.(ALIG.),M.LITT. (CANTAB.), F.R. HIST. s. (LONDON)
INDIAN CIVIL SERVICE, U. P., AUTHOR OF THE
PROBLEM OF RURAL UPLIFT IN INDIA
THE ALIGARH HISTORICAL RESEARCH INSTITUTE
THE ALIGARH UNIVERSITY
PRINTED BY J. K. SHARMA AT THE ALLAHABAD
LAW JOURNAL PRESS, ALLAHABAD
LIST OF ABBREVIATIONS . . . . . . 1 1
NOTE ON SPELLING . . . . . . . . 15
TABLE OF CASES . . .. .. .. 17
PART I INTRODUCTORY
Section I The subject-matter . . . . 25
Section II The sources of information . . 36
PART II THE TEXT
Ch. I Conditions in Medieval India . . 57
Ch. II Conception of Justice in Muslim
Ch. Ill Judicial system under the Sul-
tans . . . . . . . . . . 96
Ch. IV Judicial system under the Mu~
ghals .. .. ., .. .. 133
Ch. V Procedure in Courts . . . . 176
Ch. VI Rules of evidence . . . . 212
Ch. VII- Tendencies in criminal adminis-
tration . . . . 223
Ch. VIII Prevention of crimes . . . . 232
Ch. IX The working of the Judicial
Ch. X Summary and conclusions ; . 272
The Sultans and the Badshahs of Delhi 286
6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Criminal regulations of Aurangzeb . . I
Letters of appointment S
List of Qazis of Parganah Jais (1565-1882) (T
General Index . . . . . . . . 301
1. Copy of Judgment in Saiyad Ghulam
Mohi Uddin vs. Anbart, 1686, A.D.
Baqiat us Salehat p. 9 . . . . Frontispiece
2. Executions . . . . . . . . 233
3. Prison scene . . . . . . . . 247
This book is based on original sources some of
which have not so far been utilised by any other author.
The title owes its origin to a suggestion by the late
Sir Thomas Arnold with whom the author was asso-
ciated in this undertaking. The conclusions arrived
at depend mainly for their support on the cases de-
cided by the Muslim courts and either noted speci-
fically by historians or discovered in the original.
These judgments were collected by me from various
sources during a period of research extending over
The book has been divided into two parts. Part
I deals with the scope and the sources. Part II con-
tains the main theme. Chapter I gives the general
condition in Medieval India when the Muslim ad-
ministration was first established. Chapter II surveys
the conception of justice among the Rulers as inter-
preted by their own Law Courts or themselves. The
Judicial systems of the Sultans and the Badshahs (Mu-
ghals) are given separately as there were alterations
during the Mughal rule. In some cases the posts
remained more or less the same but their duties had
undergone changes. Anxiety not to omit reference
to any of the various scraps of evidence which I have
been able to gather, must be my excuse for what might
be thought the disproportionate length of Chapters
III and IV.
8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
The description of these two systems is followed
by a discussion of the Law of Evidence and Procedure,
tendencies in criminal administration, prevention of
crimes which includes the Police organisation and lastly
of the working of the entire judicial machinery.
This work in the words of Professor Dicey is
neither of a critic nor of an eulogist nor of an apolo-
gist but simply of an expounder and is intended to
introduce a subject hitherto neglected for further
study and research. As the material on the subject-
matter of this book is still scanty, a detailed critical
examination of the system is neither within the
scope of this book nor seems necessary at the present
I take this opportunity to express my gratefulness
to the Hon'ble Sir S. M. Sulaiman, Kt., LL.D., Judge
of His Majesty's Federal Court and Vice-Chancellor
of the Aligarh University, who took so much interest
in the preparation and the publication of this book.
Mr. A. Campbell, a distinguished member of the
I.C.S. and formerly Judge, Punjab High Court, took
considerable pains in going through the several
chapters of this book and offered valuable sugges-
Sir Hari Singh Gour, D.C.L., LL.D., D.Litt.
and Mr. A. Yusuf Ali, C.B.E., M.A., LL.M., I.C.S.
(Retd.) revised this book and very kindly offered sug-
gestions at various stages.
Nawab Mirza Yar Jang Bahadur, Chief Justice,
Hyderabad High Court (now President, Judicial
Committee of H.E.H. the Nizam's Government) very
kindly permitted me to inspect the High Court record
room and to obtain copies of valuable records for
reference. He also placed at my disposal his whole
library of valuable books and MSS. My thanks are
also due to Mr. Khurshed Ali, Director, Diwani Office,
Hyderabad for giving me an opportunity to examine
the State archives and sending me copies of useful
To Saiyad Kalbe Abbas, M.L.C of Rae Bareli ]
am indebted for assisting me in collecting the judg-
ments in Baqiatus Salehat.
Maulana Sulaiman Nadvi, President, Shibli Aca-
demy, Azamgarh has placed me under a deep debt of
gratitude by allowing me to utilize all the Persian and
Arabic MSS. in the Academy at various intervals.
Among other scholais I shall particularly wish to men-
tion the name of Professor Habib of Aligarh who
took great pains in revising the MS. and correcting
a few errors.
Mr. Abdur Rashid, M.A., LL.B., Secretary,
Editorial Board, Aligarh Historical Research Institute,
Mr. Abdus Salam, M.A., LL.B., Lecturer, Law
Department, Aligarh University, Mr. V. D. Chatur-
vcdi, M.A., LL.B. and Mr. Girja Prasad Mathur,
Assistant Master, Government High School, Aligarh,
helped me a great deal in correcting the proofs.
Judge's House, Altgarh M. B. AHMAD
January i, 1941
LIST OF ABBREVIATIONS
Br. Mus. MS.
Tarikhul Hind, 2 Vols., Tr. by
Persian Text. Bib. Ind., Vol. I.
Translation by Blochman. Vol.
II. Translation by Jarrett
Persian Text by Abul Fad, Bib.
Muntakhab ut Tawarikh, Bib.
Ind. by Badaoni
Digest of Moohummudan Law
Baqiat us Salehat
Tarikh e Firoz Shahi by Zia Ud-
din Barni, Bib. Indica.
History of India, 2 Vols., C.U.L.
Bibliotheca Indica Series
Rise of the Mahomedan Power in
India, 4 Vols. by W. Briggs
British Museum Manuscript
Collections of Diaries and Judg-
ments in the Diwani Office,
Cambridge University Library
History of Hindustan, 3 Vols. by
Lt.-Col. A Dow, C.U.L.
12 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
History of India, As told by its
own Historians 8 Vols. by Sir
Henry Elliot and Dowson
Farameen us Salatin by S. Bashir
Fatawa e Alamgiri
Fiqh e Firoz Shahi MS., I.O.L.
Travels by T. Fryer, 2 Vols.
A New Account of the East Indies
2 Vols. I.O.L. by Capt. Hamil-
'Hedaya' Translation by Hamil-
ton, published by Grady
India Office Library
India Office Library Manuscript
India Office Library Records
King's College Cambridge Li-
History of the Great Moghuls by
Pringle Kennedy, 2 Vols. LO.L.
Muntakhab ul Lubab by Khafi
Khan, 2 Vols., Bib. Ind.
Islami Qanun e Faujdari, Azam-
Manu Samhita. Tr. by Sir W.
Travels. 2 Vols. Hakluyt. C.U.L.
Mirat e Ahmadi. 2 Vols. Sup-
Commentary. Edited by Hoy-
Sarkar I, II, III
Royal Asiatic Society, London
Embassy of Sir Thomas Roe by
Mughal Administration by Sir
Vols. I, II and III. History of
Aurangzeb by Sir Jadunath
History of Bengal by Stewart
Storia du Mogor by N. Manucci.
Tuzuk e Jahangiri by Saiyad
Waqae Alamgir by Ch. Nabi
N.B. In many of the MSS. for example MS.
370 l.f. I.O.L. and 'Collections', neither the pages nor
the folios are properly numbered. Effort has, there-
fore, been made to quote other authorities as well
NOTE ON SPELLING
In spelling foreign words in English I have tried
to adhere to the exact word phonetically and have
refrained from adopting the spellings used in some of
the standard works wherein such questions do not
seem to have been raised. For example, 1 the word
Syed has been written as Saiyad, Hedaya as Hidayah,
Mohammad or Mahomed as Muhammad, Qoran as
Quran, Mogul as Mughal.
The 'Izafat' in Persian which means c of ' has been
shown by adding the letter V at the proper place
instead of the usual V as in my opinion the sound of
V expresses the connection more correctly as in
Qanun e Shahi; Qazi-e-Subah, Mirat e Ahmadi.
The letter j is written as Q as in Qazi, Tughlaq
in preference to K. The last V (6) of Arabic and
Persian words, where necessary, has not been omitted
as the omission sometimes gives a different meaning,
e.g., Hidaya and Hidayah.
The word Shiqahdar has been spelt by some
writers as Shiqdar. Barni writes it without *ah'
but the 'tashdid' on c q' conveys a different sound from
Shiqdar. The Mughals definitely used the w^ord
Shiqahdar. The spelling of words like Firoz, Saiyad
etc., given in various histories of India is erroneous.
1 1 have retained Delhi instead of Dehli as there are a few
small towns in India with this spelling and practically the
whole English knowing world has accepted Delhi.
TABLE OF CASES
Akbar Khan (suit against) Governor of Delhi
Ali Raza and Afzal Ali v. Mir Wali. Baqiat, p. 18
Ata Husain v. Ashiq Husain. Baqiat, p. 22
Ausaf Ali's case, Baqiat, p. 28
Azmat Ullah v. Ghulam Muhammad. Baqiat, p. 5
Babar v. Ali Muhammad. Baqiat, p. 12
Bawahir v. Havildar Kalupur. Mirat II, p. 5
Case of Two men of Puran Varan (Collections)
Dara (complaint of) against Diwan-e-Ala (MS. 370
I. f. 1.0. L.)
Deshmit v. Faujdar (Collections)
Dunia Murai v. Shaharnat Ali. Baqiat p. 25
E. L Co. (claim of) against State. Captain Hamilton
I, p. 232
E. I. Co. v. State. Islamic culture, 1928, p. 134
Gada Husain v. Fateh Alam. Baqiat p. 20
Ghanshyam v. Mughal Noble. Sarkar, Aurangzeb IV
1 8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Ghulam Murtaza v. Waris. Baqiat, p. 15
Haji Zahid and Pirji v. Prince Murad. Khafi Khan II
Haji Zahid and Pirji v. State. Khafi Khan II, p. 25 1
Hamid Uddin v. Prince Kambux. Khafi Khan II, p. 437
Hamira Bibi v. Zubaida Bibi. L. R. 43 I. A. P. 301,
Hamiyat Ali v. Gauri Shanker. Baqiat p. 32
Hindu Clerk v. Mughal Soldier. Storia I. p. 203
Kartalab Khan (Complaint against). Storia II. p. 259
Karva v. Sundar (Collections)
Kashmiryan (Case of). Baqiat. Br. Mus. MS., 26,
239 f. 16
Kh\vaji Ahmad v. Ali Muhammad. Baqiat p. 10
Manucci v. Portuguese. Storia III. pp. 128-129
Master v. Servant. Storia I. p. 201
Matrimonial Case in the Court of Governor Parenda
Mir Wali v. Mushrif. Baqiat p. 22
Mir2a Beg v. State. Khafi Khan II p. 257
Muhammad Mohi Uddin v. Anbart. Baqiat p. 9
Muhammad Tughlaq^. Shaikh Zada Jami. Badaoni I
p. 239 (Bib. Ind.)
Muhammad Wali v. M. Shahid. Baqiat p. 23
Mohi Uddin v. Pir Ali. Baqiat p. 7
Mohi Uddin v. Qazi Mansur. Baqiat p. 2
Mst. Bibi Zadi v. Mir Wali. Baqiat p. 16
TABLE OF CASES 19
Mst. Feeta v. Miran, Baqiat p. i
Muslim Woman v. Hindu Rajput. Storia p. 174
Nurullah v. M. Ullah. Baqiat p. 4.
Nusrat Ali and others v. Qaim AH. Baqiat p. 21
Old Woman v. Muqarrab Khan. Tuzuk p. 83
Pan Seller Woman v. Prince Adill Shah. Erskine II, p.
Qazi Imdad Uddin (Case of) Elliot II, p. 349
Qazi Khair Uddin (Case of) Baqiat p. 30
Qazi Sadrul Mulk (Case of) Shams Siraj Afif, p. 473
Rajava Slave Girl's case. Storia III, p. 205
Ram Rai v. Har Kishan. Sarkar III, p. 353
Raziah's Murder Case. Elliot III, p. 593
Sadiq v. Shakur. Sarkar, Aurangzeb V, pp. 421-22
Salabat Ali v. Wasit Ali. Baqiat p. 26
Saiyad Bakar v. Mst. Batul. Baqiat p. u
Saiyad v. Mian Malik. Elliot IV, p. 454, Kennedy I
Sher Muhammad v. State. Collections
State v. Armenian. Fryer I, p. 244
State v. Babaji (Collections)
v. Babaji Deshmukh (Collections)
v. Bindraban. Stewart, p. 410
20 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
State v. Brahman. Elliot V, p. 543
v. Budhan Brahman. Elliot VI, p. 187, Bever-
idge I, pp. 101, 102
p. Chabila Ram. Sarkar, Aurangzeb I, p. 174
v. Chand Baksaryan (Collections)
v. Daryai Khatun. Storia I, pp. 200-201
v. Dxirga (Theft case) (Collections)
v. Empress Nurjahan. Tuzuk-e-Jahangiri by
Shibli, pp. 30-31
v. Genoese. Storia I, p. 265
v. Gujrati woman. Briggs II, p. 352
v. Haibat Khan. Briggs I, p. 253
v. Hushang. Tuzuk S. A. i6th year, p. 333
v. Ibn Baqa Billa. Taskiratul Ulema, p. 5 3
v. Islam Khan. Elliot IV, p. 26
v. Jankar Khan. A. N. Ill, p. 32 (Akbar Namah)
v. Kalyan. Elliot VI, p. 314
v. Khorasani. Shams Siraj Afif, pp. 496-7
v. Khusro and others. Timik (S. A.), p. 28
v. Khwajah Ahmad. Shams Siraj Afif, p. 508
v. Kotwal Said. Storia I, p. 197
v. Lakshman Banjara (Collections)
v. Madari Faqir (Collections)
v. Malik Faiz. Briggs I, p. 253
v. Manrique and Muslims. Manrique V, pp.
v. Manrique and others. Manrique II, pp. 137-8
v. Manucci. Storia II, pp. 197, 198, 199
v. M. Aqil. Waqae Alamgir, pp. 80-8 1
v. Muhammad Said Kotwal. Storia I, p. 197
v. Muhammad Tughlaq's son and others. Ibn
Batuta. See p. 128. Dow I, p. 309
TABLE OF CASES 21
State v. Mir Murtaza. Khafi Khan II, p. 564
v. Mirza Beg Kotwal. Khafi Khan, p. 257
v. Muqaddam. Mirat I, p. 49
v. Mst. Balai (Collections)
v. Mughal Soldier. Storia I, p. 203
v. Muslims of Khandesh. Manrique II, p. 112
v. Muslim Trade Commissioner. Monserrate, p.
v. Nawal. Elliot VI, p. 346
v. Noble Woman. Roe, pp. 190-191
v. Police Official. Safir-e-Oudh, pp. 90-91
v. Potter. Storia I, p. 174
v. Prince. Mirat I, p. 49
v. Prince Adil Khan. Erskine II, p. 445
v. Prince of Gujrat I, p. 49
v. Qazi Jalal-uddin and another. Badaoni I,
v. Qazi Mir. Storia IV, pp. 118-119
v. Qutub Uddin Bohra. Sarkar, Aurangzeb III,
v. Rae Rae Singh. Tuzuk (S. A.) p. 62
v. Rukn Mahdi. Br. Mus. Ms. Or. 2309 f, 301
v. Sarmad. Sarkar, Aurangzeb III, p. 113
v. Sidi Maula. Barni, p. 211
v. Sidi Maula. Beveridge I, p. 75
v. Sidi Maula and others. Badaoni I, p. 171
Elphinstone, p. 381, Beveridge, pp. 75-76,
Barni, p. 211
v. Seif Ala. Dow III, pp. 105-107
v. Shah Mansur. Monserrate, pp. 98-99
v. Shakur. Sarkar, Aurangzeb VI, pp. 421, 422
22 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
State v. Sh. Alai. Briggs II, p. 141
v. Sh, Haidri and others. Ibn Batuta, p. 146
v. Shiqahdar. Manrique I, pp. 424-425
v. Son of Babaji (Collections)
v. Sulaiman and others (Collections)
v. Tahir. Sarkar, Aurangzeb III, p. 113
v. Two thieves (Collections)
v. Uddav and others. Sarkar, Aurangzeb III, p.
v. Vizir, Elphinstone (1857), p. 356
v. Woman of Gujrat. Briggs II, p. 35 2
v. Yaqub and Nairn. Briggs IV, p. 5 19
v. Youth. Fryer, Travels I, p. 245
v. Yusuf. Briggs IV, p. 517
Subedar Deshmit v. Faujdar (Collections)
Tarbiat Khan (Complaint of). Dow III, p. 173
Theft case. Storia III, p. 128
Wahab v. Saiyad and others, Tuzuk S. A., p. 306.
Wahab's Case. Tuzuk-e-Jahangiri, p. 306
Wali v. Mushrif. Baqiat, p. 22
Wazir's Case, Ibn Batuta, p. 147
Widow v. Faujdar. Khafi Khan II, p. 5 50
v. King Ghyas. Stewart, pp. 90-91
v. Muqarrab Khan. Tuzuk (S. A.) p. 83
Woman's Complaint. Storia III, p. 123
Woman v. Prince Adil. Erskine, p. 445
Woman v. Youth, Storia II, pp. 419-20
THE SUBJECT MATTER
Imad Uddin Muhammad bin Qasim, a seventeen
year old general, 1 was the first Muslim who made any
conquest in India. Although his victory over the
local ruler of Sindh in 712 A.D. established a Muslim
Indian dominion and the invasions of Mahmud of
Ghazna and Muhammad of Ghor in the nth and the
1 2th centuries A.D. brought the Muslims into closer
contact with the inhabitants of India, yet as they left
the government of the country to the people who
professed a different religion the Muslim institutions
did not get any foothold in India properly until
It was in this year that Qutub Uddin Aibek, a slave
of Muhammad Ghori, King of Ghor, consolidated
his conquest of the whole of Northern India and laid
there the foundation of the Muslim administrative
This important year also marks the introduction
of Islamic Law in India and of its judicial machinery
on a permanent footing 2 as the conquerors for the first
time intended to establish permanent institutions.
The early Muslim Kings who with the exception
1 Compare Cambridge History of India III. pp. 2-10. Also
Cambridge History of India III. pp. 4, 10, n.
2 Compare Islam by Sir D. Ross, p. 60.
26 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of the Saiyads, 1 were either Turks, Afghans or Pathans,
took the title of Sultan. Their administration is
known as the "Sultanate". They came to India from
Turkistan and the North West where the seeds of
Islamic Culture had recently been sown. The ad-
ministrative structure built by them continued, with
occasional modifications and improvements, to exist
during the successive Muslim dynasties up to the
year 1857 A.D., and as I propose to show elsewhere,
bore strong resemblance to the institutions developed
by the Abbaside rulers of Baghdad, usually known as
As Sir Denison Ross has pointed out 2 Islamic
traditions of sovereignty had sufficiently crystallised
by the time the Turks established themselves on Indian
soil. Students of legal research had for their guidance
Al Mawardi's "Ahkam us Saltanyah", 3 an epoch
making work on constitutional Law and practice and
"Tarikhud Dawal" written by Saif Uddin Ibn Tiqtaqa
in the nth century A.D. To the rulers of Central
Asia, the ancestors of the Mughals, the pages of Niza-
mul Mulk's "Syasat Namah" were familiar. 4
The history of the judicial administration in
Medieval India, therefore, necessarily entails a study of
the origin and the development of Islam, the religion
founded in the early days of the yth Century A.D., by
1 Saiyads (1414-1450 A.D.). The word 'saiyad' literally
means leader. The followers of the Prophet Muhammad
who claim descent from him through his daughter Fatima,
generally style themselves 'Saiyads'.
2 Islam, pp. 46-47.
3 (Arabic) Printed in Paris 1901-1906. Al Mawardi
was an Arab.
4 Nizamul Mulk wrote this book in about 1168 A.D.
THE SUBJECT MATTER 2J
Muhammad, the Prophet of Arabia (570-632 A.D.)
and noticed during the caliphate (632-1258 A.D.).
The subject-matter of this book, however, is limi-
ted to a study of the system employed by the Muslims
to administer justice in India and, incidentally, of the
principles of the adjective Law in force in medieval
India. This is not intended by any means to be an
exhaustive treatise on the Law of Procedure adopted
by medieval Indian Courts. I have given a brief
description of it in order to illustrate the working of
the judicial system, and discussion has been confined
to those points only on which authorities exist either
in the form of decided cases, or where reference to
them has been given in the precedents quoted in such
authoritative works on the Muslim Law as the
Hidayah, the Fiqh e Firoz Shahi or the Fatawa e Alam-
giri which regulated procedure of courts in medieval
India. This particular aspect of Muslim Law and,
incidentally, of the medieval history of India, has, it
seems, remained unexplored, while the substantive
Law of the Muslims has received adequate attention
at the hands of eminent authors such as Baillie, Ameer
All, Wilson, Tyabji and Mulla. It is, therefore, hoped
that this book may lay the foundation for further re-
search both in Muslim Law and its practical working,
and in medieval Indian history.
In discussing, however, the judicial system in
vogue in any Muslim country, it is necessary to bear
in mind that one of the principal articles of faith
among the Muslims has been a steadfast reliance on
the Quran, the Book of Revelation, as the Word
of God which is meant for all times to give Law to
28 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
the people. The Muslim rulers in India, like their
co-religionists elsewhere, 1 accepted the Quranic
Law as divine and hesitated in making any attempt
to "improve" upon what was ordained. There
was not much scope for fresh legislation on the sub-
jects provided for in the Quran, nor for repeal of the
"Sacred" Laws nor for the development of what is
nowadays called Judge-made Law. In fact there
seemed to be no need for it. If precedents were
sought in Muslim Courts, they were either from the
Quran or from the practice of the Prophet Ahadith
(Traditions) collectively termed "Usul ul usul".
Sometimes resort was had to the consensus of opinion
among the Ulema Ijma, 2 but in no case was any essen-
tial provision of the Law altered. In cases where the
Quran, the Ahadith and the Ijma could not give any
direction the Judge was to use his discretion, but his
Judgment was not necessarily binding on others. 3
This was perhaps a reason why no encouragement
was given to Case Law in practically all Muslim States
1 The Muslims, after the death of the Prophet in 623 A.D.
had divided themselves into Sunn is and Shiahs. The former
thought that a successor (The Caliph) to the Prophet could be
elected while the latter insisted that the succession should be
confined to the family of the Prophet. The Sunnis had an
overwhelming majority and won the fight. The Shiahs had no
other difference on the essentials. The Sunnis themselves
were divided into four principal schools of thought, the Hanafis,
the Shafa'is, the Malikis and the Hambalis, but again there
was no divergence of opinion so far as the chief tenets of the
religion were concerned.
2 'Ijma' means gathering: refers to consensus of opinion.
See i. Hujjat ul Balighah by Sh. Waliullah (Chapter on Mujta-
hid). 2. McDonald, pp. 57-58.
3 Al Mawardi, compare J. R. A. S., 1910, p. 765 ; Fitzgerald
p. 7; also letter of Caliph Omar I to Qazi Shorai and Shibli
Sirat un Nabi II, p. 245.
THE SUBJECT MATTER 29
throughout the world.
It may be for this reason that one finds that the
sources of information about the history of judicial
administration in Medieval India, which covers a
large portion of Indian History from 1200 to 1857
A.D., are limited. 1 There have been Chronicles of
various Courts, memoirs of Kings and historical anec-
dotes given by foreign travellers they are all excellent
accounts of the period as a whole but in most of them
there has been no systematic discussion of the judicial
system and Laws that were in force in medieval India,
except casual references. The attention of these
writers seems to have been occupied mostly with
battles and political changes. The Ain e Akbari 4 and
the Akbar Namah 2 give an account of the general
conditions of administration while the Fatawa e Alam-
giri, 3 the great Corpus Juris of Aurangzeb's reign
is more or less an exposition 4 of the substantive Law
then prevailing. Both were compiled under two of
the greatest sovereigns but neither describes in any
detail the machinery employed by the medieval rulers
in carrying out their judicial administration.
The study of this subject has, therefore, involved
extensive reading and a good deal of travelling in the
interior of the country. It appears to me that lack
1 Compare Amedroz remarks (J. R. A. S., 1910, p. 761)
"of Muslim legal procedure we know but little, the nearest ap-
proach to Law reports being the notices of judicial Proceed-
ings in works dealing with the lives of Judges. Such a work
is the History of the Kazis of Egypt by Al Kindi",
2 See Bibliography.
3 See Section II.
4 Compare (i)Baillie Digest, p. XII. (z)Hidayah,p. XXXII
says "bare recital of examples". Maasir e Alamgiri, pp. 5 29-30.
30 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of information and the compilation of the Fatawa e
Alamgiri so late as 1670, are responsible for the fact
that a systematic description of the Muslim judicial
system is generally found missing in the many works
on Indian History sometimes even by writers whose
books are commonly read in India. For example,
from a perusal of the Oxford History of India, 1 the
"Mughal Rule in India", 2 "Akbar to Aurangzeb", 3
the "Mughal Administration", 4 and of other 5 books,
an impression is conveyed that in spite of an elaborate
machinery of government there was practically no
system for the working of the Law Courts in Muslim
India. "The main defect" says a modern writer 6 "of the
department of Law and Justice was that there was no
system, no organisation of the Law Courts, in a regular
gradation from the highest to the lowest, nor any
proper distribution of courts in proportion to the
area to be served by them".
On the other hand w^e possess the following com-
ment from an eminent English scholar in i85o 7 :
"Much of the procedure in the Company's (East
India Company) Courts of Justice has been derived
from it (Muslim Law); and through this means, and
also through the subordinate officers and pleaders
of the Courts who, with a very few exceptions,
x p. 311, 371 (V. A. Smith).
2 p. 189 (Edwardes and Garrett).
3 pp. 233-4 (W. H. Moreland). See also his 'India at
the death of Akbar% pp. 34-35.
4 p. 19 (1920) (Sir Jadunath Sarkar). See also III Aurang-
zcb, pp. 82-85.
6 p. 89, Roe's Embassy by Foster.
6 p. 1 08, Mughal Administration by Sarkar (1935).
7 Moohummudan Law of Sale by Baillie, p. XV.
THE SUBJECT MATTER 31
are Moohummudans or Hindoos trained to the same
methods and have derived any knowledge or juris-
prudence they possess from that source it exercises
a powerful though unseen influence on the adminis-
tration of justice even by English Judges".
According to McDonald 1 the Muslims regarded
the administration of justice as a duty, and with their
"armies everywhere went Law and Justice such as it
was. Jurists accompanied each army and were set-
tled in the great camp cities which were built to hold
the conquered land".
"Many centuries", says Hamilton 2 in 1780 "have
elapsed since the Mussulman conquerors of India
established in it, together with their religion and
general maxims of government, the practice of their
Courts of Justice. From that period the Mussulman
code has been the standard of judicial administration
throughout the countries of India which were subju-
gated by the Mohammedan princes, and have since
remained under their dominion. In one particular
indeed, the conduct of the Conquerors materially
differed from what has been generally considered in
Europe (how unjustly will appear from many passages
in this work) as an invariable principle of all Mussul-
man governments; namely, a rigid and undeviating
adherence to their own Law, not only with respect
to themselves but also with respect to all who were
subject to their dominion".
In a remarkable passage in his report 3 on Judicial
1 Muslim Theology, p. 83.
2 Hidayah, p. XIV.
3 Dow III, pp. XXIX-X.
32 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
reforms submitted in 1772 to Warren Hastings, Lt,-
Col. Alexander Dow, a distinguished Civil Servant
of the East India Company, says "The Courts of Jus-
tice ran through the same gradations which the general
reason of mankind seems to have established in all
countries subject to regular governments. The
Provinces were divided into districts, in each of which
a Judge appointed by the Emperor decided in Crimi-
nal as well as Civil affairs In disputes concerning
property there lay an appeal to the Supreme Court in
which the Viceroy presided in person There
arose a chain of appeals from the lowest to the highest". 1
We have again the testimony of a French traveller of
note wherein he says 2 "Barbarous as we are apt to con-
sider the Sovereigns of Asia, they are not always un-
mindful of the justice that is done to the subject".
It would thus appear that there was undoubtedly
a judicial administrative system in those days, though
opinions regarding its utility at the present stage of
India's material progress may not be the same.
Indeed there is, as I intend to show elsewhere,
considerable evidence to support the fact that there
existed a workable system in medieval India suitable
to ideas of those days. That it was picked up
more or less in its original form 3 and allowed 4 to
1 Dow III, p. Ivi.
2 Bernier's Travels, p. 263. Compare Marshall's remarks
on p, 391 Diary edited by Khan.
8 Compare Hidayah, pp. XIV-XV.
4 Compare Wilson's "Anglo Muhammadan Law" by A.
Yusuf Ali, p. 26. In his reply to John Buller enquiring about
the execution of certain punishment awarded to dacoits, War-
ren Hastings said on 12.10. 1781:
" As the natives are not to be tried according to
THE SUBJECT MATTER 33
work 1 in the East India Company's Courts by such an
experienced administrator as Warren Hastings, is
an undoubted testimony of its usefulness in those
Apart from the prominence given to the Muslim
system of Law and Justice by Warren Hastings (1774-
1784), we find that the contemporary Persian authori-
ties, as well as foreign travellers, have distinctly
referred 2 to Courts of Justice and the Qazis 3 Judges
our notions of justice, but by the established Law of
the Country, excepting in very extraordinary cases
where it has been usual for Government to interpose,
I must request that you will permit the officers ap-
pointed for that purpose to carry the enclosed warrant
into immediate execution".
1 Sir William Markby in his "Hindu and Mahommedan
Law" pp. 7, 8, thinks that no other way was legally possible,
as the Mughal Emperor who had granted the Diwani to Clive
by a Farman was in existence at Delhi and would not permit
any other law to be promulgated. This argument, however,
supports the theory that it was for this reason that the govern-
ment of England could only consider itself morally responsible
for the good administration of the land over which the East
India Company had secured certain administrative rights. If
they interfered at all, it was for the sake of efficient govern-
ment and nothing more than advice in the shape of 'regula-
tions' could be given. Kaye in his Administration of the
East India Company (p. 93) points out that the British govern-
ment in England objected to the use of the word "Laws" by
Cornwallis as they could only be promulgated by the Mughal
Emperor to whom the Company was legally responsible.
2 Persian (i) Travels of Ibn Batuta Lee. (2) Tarikh e
Firoz Shahi. (3) Ain e Akbari. (4) Maasir e Jahangiri. (5)
Maasir e Alamgiri. (6) Khafi Khan. (7) Badaoni. (8) Ruqaat
e Alamgiri. (9) Arzdasht. (10) Mirat e Ahmadi.
Foreign Travellers (i) Marshall, p. 391. (2) Manucci I,
pp. 198-204. II, pp. 210, 419. Ill, p. 263. (3) Travernier I, p.
325, (4) Bernier, pp. 212, 263. (5) Manrique II, pp. 112, 149,
159. (6) Roe, p. 260.
3 Captain Hamilton, Vol.1, p. 121 "seek Justice at the
34 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of those times, and to the system of appeals 1 and
punishment, and also to the exercise of the Royal prero-
gative by the medieval Rulers. A number of impor-
tant law books 2 were written during the Muslim
period by persons who were Law Officers or Judges
of repute. There was indeed no reporting of cases
as we use the phrase in our own times, but Aurangzeb
is said to have issued 3 orders regarding the preserva-
tion of Court records (Collections) and the circula-
tion of important judicial decisions among the Qazis. 3
There have been instances in which appeals were
preferred on interlocutory points (vide Storia III, pp.
263-264) to higher Courts even before Aurangzeb's
times, and this also suggests in a way that some re-
cord of cases must have existed. Whether the records
were kept exactly as they are preserved now in British
India, is not clear. I came across an order of
Aurangzeb's Court among the state papers in the
Diwani Office of the Nizam's government, direc-
ting a particular file to be kept in the office safely.
Perhaps for this reason the equivalent of the
word "Record Room" in British India is usually
1 Badaoni (Ranking) p. 311; Dow III, pp. XXIX-X; More-
land, India at the death of Akbar, p. 36; Owen 'Tall of the
Mogul Empire", p. 4.
2 The best known are Fiqh e Firoz Shahi, Sharh e Waqa-
yah Kitabul Ikhtyar and Fatawa e Alamgiri.
3 Compare Sarkar (1935) "The Mufti is urged to spend
his days and nights in reading books on jurisprudence and
the reports of cases from which one can learn precedents.
When he finds the judgment proposed in a case by the Qazi
under whom he serves, to be opposed to all precedents, he
should tell him politely 'Sir, in a similar case reported in such
and such book the judgment is given thus. It would be better
if you pronounce your judgment after reading that book"%
p. 28. Compare Baillie, pp. 763-769.
THE SUBJECT MATTER 35
Mohafiz Khanah literally a strong room. But no
Record Room registers have so far been recovered
in any place in India. I visited libraries such as the
Rampur State Library, the Oriental Library, Banki-
pur, the Imperial Library, Calcutta, the Asafiah Li-
brary, Hyderabad in addition to the British Museum,
the India office and the Bodleian libraries, but no such
papers were available. From a reference given in
the India office records, Home Miscellaneous 529
(pp. 3 1 1-3 1 5) it appears that the Qazis who decided
cases used to send their records to the Chief Court
(Suder Kutchehri) of the Province along with a
monthly return, but no such returns have yet been
Either there were no record registers, or they
disappeared during the gradual process of decay of
the Mughal Empire from 1750 to 1857. The docu-
ments which have so far assisted me were probably
obtained by or made over to litigants and they were
collected by me during an extensive tour in the coun-
try. These have been preserved carefully enough
by their owners, while the official records, perhaps,
have been first neglected and then destroyed in a period
of constant turmoil and upheaval.
THE SOURCES OF INFORMATION
The books and documents that were found useful
in the preparation of this work may be classified into
two categories (i) Original authorities and (2) Later
compilations. They do not contain any systematic
accounts of the medieval judicial system but a substan-
tial amount of information can be gathered by piecing
The original authorities consist of books or papers
written mostly in Persian by contemporary writers and
official records. They can be divided into four
I. Original Judgments and diaries of News-
II. Commentaries on the art of government by
III. Regulations issued by the King.
IV. Works of Contemporary writers.
(1) Records kept under official
(2) Persian authorities.
(3) Foreign travellers.
The later compilations consist of modern pub-
lished books. I have given a select Bibliography in
the Appendix. The more important of these author-
ities are noticed here.
THE SOURCES OF INFORMATION 37
i. ORIGINAL AUTHORITIES
I. ORIGINAL JUDGMENTS AND DIARIES
i. Baqiatus Salehat.
This is a collection of fifty judgments and orders
in original delivered by Courts during the period 1550
1850 A.D. They were obtained by me from various
persons and I intend to publish them separately. The
judgments are written in Persian and bear the seal
of the Court and give first hand information.
Some diaries kept by Waqae Nigars or News-
writers attached to various Courts and Judgments
have recently been discovered in Hyderabad Daccan
and preserved in separate Files in the Diwani office
of H.E.H. the Nizam's Dominions. I have given the
name 'Collections' as the easiest method of reference.
The above MSS. hitherto not utilised by any other
writer, have simplified my task, as it is through the
judgments and orders contained therein that the allega-
tions made by various historians referred to above
can be tested.
Another useful publication is Farameenus Sala-
teen, a collection of Farmans issued by the Mughal
Emperors, by M. Bashir Uddin, a retired Collector of
a district in India and printed in Delhi, It contains
copies of the original Farmans which give the duties
attached to each office. A few Farmans copied from
this book are given in the appendix.
38 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
II. COMMENTARIES BY MUSLIM JURISTS
1. Ahkamus Sultanyah by Al Mawardi. Paris
A well known treatise on Muslim political law
written in Arabic by Al Mawardi. Other writers on
this subject draw their references mainly from this
The Qazi's appointment and office are dealt with
exclusively in a separate chapter.
2. Sulukul Saltanath by Ghazali. Br. Mus.
MS. Or. 254.
The author of this book is a well known philo-
sopher of Islam, and his comments on the art of
government contained in the above MS. merit atten-
3. 'Sayasat Namah' by Nizamul Mulk Tusi.
Br. Mus. MS. Add. 23, 516.
Nizamul Mulk was a famous Persian Minister
For over a quarter of a century. He wrote this book
:ontaining fifty chapters in order to oifer practical
guidance to people engaged in the task of adminis-
tration. The date is somewhere between 480 and 498
A.H. i.e., 1082 A.D. and 1098 A.D.
4. Sulukul Muluk by Fazal bin Rozbahan
[sfahani. Br. Mus. MS. Or. 253.
The book refers mainly to the Turkish rulers of
Central Asia from whom a number of pre-Mughal
dynasties sprang. It consists of 15 Chapters. Chap-
ter I deals with the maintenance of Law, II with the
ippointment of Qazis (Fol. 31) and Mohtasibs (Fol.
54a), X Repression of Mutinies, XIII Laws of Treason
THE SOURCES OF INFORMATION 39
and XIV with Zimmis.
5. Muqaddamah Tarikh e Ibn Khaldun.
Ibn Khaldun is the greatest historian produced
by the Arabs. His discussion of the principles of
administration in various Muslim countries bears
testimony to his scholarship and erudition. It has
been translated into French and Urdu. The latter
translation was done by Abdur Rahman and printed
in 1904 at Lahore,
6. Zakhiratul Muluk by Ali Shahab Hamdani
(i) Br. Mus. MS. Add. 7, 618. (2) MS. King's
This book was written in about 782 A.H. i.e.,
i4th century A.D., and deals with the rights of the
people and the obligations of the rulers. It is a trea-
tise on political ethics and good government and was
a favourite book with scholars during the early Tur-
kish regime. The author was a celebrated "Sufi"
reputed for his piety and character.
7. Adabul Harb, by Fakhr Uddin Mudabbir
Br. Mus. MS. Add. 16853.
The MS. appears to be the same as Adabul Muluk
No. 2767 of the India Office Library. It is a disser-
tation on government and war and gives contem-
porary thoughts on statecraft. The author is Sharif
Muhammad and he has dedicated this book to Iltut-
8. Fatawa e Jahandari by Zia Uddin Barni,
MS. 1149, or 2563 (I.O.L.).
Another book on government, written in Persian
during the Sultanate.
9. Kitabul Kharaj by Imam Abu Yusuf.
40 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Abu Yusuf was the first Qazi to be appointed
Qazi ul Quzat or the Qazi of the Qa2is under the
Abbaside Caliphate. He was noted for his learning,
piety and scholarship. The book is authoritative so
far as the interpretation of Law in relation to the
State administration is concerned. His other treatise
Kitab Adabul Qazi deals exclusively with the judicial
system and the duties of Qazis.
/ 10. Hidayah by,Burham Uddin Ali bin Ali B.
Marghinani^A.H. w%%rf$us. MS. Add. 5543.
This is a well known commentary on Muslim
Law and was adopted in the Courts in Medieval
India for guidance till it was replaced by Fatawa-e-
Alamgiri in about 1670 A.D. Copious references to
cases decided by medieval Courts are given, but
details of the Courts and the exact places of trial are
omitted. In 1772 A.D. Warren Hastings got this
book translated from Arabic into Persian through a
commission consisting of Ghulam Yahya, Taj Uddin,
Mir Muhammad Husain and Mulla Shariatullah.
The English translation was done by Hamilton and
the only edition available is that published by Grady
in 1870. Book XX deals exclusively with the duties
of Qazis. The book has been printed at Lucknow
III. REGULATIONS ISSUED BY THE KING
< FiqheFiroz Shahi. MS. I.O.L. 2,987 by
Yaqub Muzaffer Kirani.
A Civil Procedure Code compiled in the time of
Firoz Shah Tughlaq, The book gives details of the
procedure and law on civil matters. It is in Arabic
THE SOURCES OF INFORMATION 41
but was translated into Persian by the order of Firoz
Shah and seems to have escaped the attention of prac-
tically every historian of the period. It is an impor-
tant book as it remained the basis of the judicial
system under the Delhi rulers until replaced by the
Fatawa e Alamgiri.
V^j^_-~Akre Akbari Bib. Indica.
This book has been utilised by many students of
Mughal history. It gives the duties of Qazis and Mir
Adls and instructions about the recording of evidence.
The English translation by Blochman and Jarrett
is fairly accurate.
3. Tuzuk e Jahangiri Edited by Saiyad Ah-
mad Khan, Aligarh.
It gives the institutes of Jahangir and a few
instances of his will to do justice among his subjects.
The edition published by Saiyad Ahmad appears to
be the only realiable copy of the original. The Bodle-
ian Library, Oxford has a Farman of Jahangir in ori-
ginal which defines the status of Aliens and seems to
have been left out in this publication.
4. Dasturul Amal Alamgiri. Br. Mus. MS.
These sets of regulations give the structure of
the Mughal provincial administration. . \ w
^^J^rr^^ by Shaikh Nizam l> and
"outers. 1670 A.D.
According to the author of Alamgir Namah,<
who is supported by Khafi Khan, Aurangzeb did not
favour 1 poets and Court Chroniclers in his court,
1 Compare Aurang2eb i (Sarkar) p. 6; Dow HI, 396.
42 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
as he thought that they "told lies" in their flattery
and served no useful purpose. 1 He had also occasion
to criticise 2 a few judgments of inferior Courts. He
felt that not only the people but the Law Courts as
well did not possess sufficient knowledge of the law. 8
In about 1663 A.D. he, accordingly, appointed a com-
mission under the chairmanship of Shaikh Nizamlna
celebrated lawyer of Lahore. The latter was assisted
by six more lawyers. The names of four only, viz.,
Muhammad Jamil, Zia Uddin, Jalal Uddin Husain
and Muhammad Husain only are traceable. 4
The commission examined a number of men
learned in Law and completed their report after seven
years. 6 The expenses of the commission amounted
to two lakhs of rupees. 6 The report written in Arabic
contained an exhaustive code of laws to replace the
Fiqh e Firoz Shahi v anoomer regulations, and Fatwa
e Alamgiri was the name given to it by the commission
themselves after its "illustrious projector". The
Fatawa is based on the Quran, and the most favoured
traditions (Ahadith) and references are given to de-
1 Compare Baillie, Law of Sale, p. VI; Br. Mus. MS. Add,
26, 239 f. 66; Alamgir Namah, p. 1072.
2 See (i) order MS. Raqaem e Keram K. C. C. 15.
(2) order pp. 72, 80 Waqae Alamgir. (3) Br. Mus. MS. Add,
26, 239, f. 16.
3 Maasir e Alamgiri, p. 529 also Storia II, p. 31. Au-
rangzeb's conversation with his tutor Mulla Saleh: Alamgii
Namah, p. 1086.
4 Vide Tajalli e Nur (Hyderabad) pp. 77-89, 98-99, 119-120,
5 Khafi Khan, p. 25 1, Vol. II.
6 Maasir e Alamgiri (Hyderabad No. 218) p. 529. Two
lakhs of those days amount to about f million rupees of the
THE SOURCES OF INFORMATION 43
cided cases though exact details, viz., the names of
parties, court and date are lacking. Another commis-
sion was appointed a few years later under Chulpi
Abdullah to translate the work into Persian. (Elliot
VII, p. 160).
So far as the interpretation of Muslim Law in
India is concerned the book can be thoroughly relied
upon. Baillie, who translated portions from it in his
Digest, observes 1 in 1850 A.D.
"In Fatawa cases are so well arranged and so
judicially interspersed with the more abstract
parts of the work as in general to carry their own
reasons to the mind "
"It is sufficient to notice in this place that the
Fatawa e Alamgiri is a collection of the most
authoritative Fata\va or expositions of Law, on
all points that had been decided up to the time of
Several editions of this work have been, printed.
The one published at Cairo is named Fatawa e Hindyah
and gives some introductory remarks 2 in the preface
borrowed mainly from Maasir e Alamgiri (pp. 529-
530). The translation in Urdu was done by Sh.
Amir Ali and printed at Lucknow. Sh. Amir Ali
has given a lengthy introduction but has entirely
ignored the historical part of it.)
6. Br. Mus. MS. Add. 6,580.
This is a MS. of Mirat e Ahmadi, containing
Aurangzeb's Farman on penal regulations; Chapter VI
1 pp. VII and VIII, Moohummudan Law of Sale.
2 p. 2, Egyptian edition.
44 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of Sir Jadunath Sarkar's "Mughal Administration"
(1935) is mostly a reproduction of this Farman, which
is printed on pp. 278-283 (Part I. Mirat e Ahmadi.
7. Dasturul Amal Alamgir. Br. Mus. MS. Add.
This is a Manual containing directions regarding
weights, measurements and cognate matters. Fol.
i86-b-2oi-b give forms of appointment of Shiqahdars
and other officials.
8. Dastur. Br. Mus. MS. Or. 1779.
Gives the Revenue tables of Provinces and dis-
tricts of the reigns of Shahjahan and Aurangzeb
with forms of appointment to various offices and also
9. Dasturul Amal Shahenshahi. Br. Mus. MS.
Add. 22,831. (Muhammad Shah's reign).
Prepared in 1230 A.H. (1818) gives account of re-
gulations in the time of Muhammad Shah (1719-1748).
10. Dasturul Amal Adalatha e Talluqah. MS.
A civil and criminal procedure code in Persian
prepared in 1793 for the East India Company's districts
in South India.
IV. WORKS OF CONTEMPORARY AUTHORS
I. A. Records kept under official patronage
i. Tajul Maasir by Hasan Nizami. MS. 200
King's College* Cambridge.
This MS. gives the history of the early Sultanate
THE SOURCES OF INFORMATION 45
2. Tabaqat e Nasiri Br. Mus. Or. 1886 by Min-
hajuddin Siraj (Qazi) Or. 1887 is the life of the author
compiled for Sir Henry Elliot by Zia Uddin Ahmad
Nayyar, a descendant of Qazi Minhaj Siraj 1849 A.D.
3. Badshah Namah Abdul Hamid Lahori.
Like Akbar Namah this was an official record of
the reign of Shahjahan for 20 years. Shahjahan took
an interest in deciding cases to which occasional
references are given in this book.
4. Amal e Saleh by Saleh Kamboh. Or. 2157.
Br. Mus. MS. Add. 26,221.
Written on the lines mentioned above; this book
has in part been published by the Royal Asiatic So-
ciety of Bengal. Another edition has been printed
5. Alamgir Namah (by M. Kazim. Bib. Ind.)
Written on the lines of Lahori's Badshah Namah
gives the history of Aurangzeb's first ten years of reign
and occasional reference to his legal reforms.
B. Letters of Officials
i. Ruqaat e Alamgir. Oxford, I.O.L.; Azam-
garh, Lahore, Lucknow.
Aurangzeb's orders and letters written officially
have been collected at various places. They contain
valuable information regarding his administration.
One set of 'letters' is contained in Waqa e Alamgir,
published with notes by Chaudhri Nabi Ahmad, a
Police Officer of U.P., India.
The Shibli Academy, Azamgarh has also printed
46 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
some private letters of Aurangzeb under the same
The British Museum Collection is Add. 18,881,
Add. 26,239, and the India Office MS. 1,344 and
3301. See also Raqaem-e-Keram Ousley MS. 168
Oxford and MS. K.C.C.
2. Kalimat-ut-Tayyebat. Br. Mus. MS. Add.
This is a collection of official orders of Aurang-
zeb regarding various subjects including Court work
by his favourite secretary Enayetullah Khan. They
are referred to in part in Ruqaat-e-Akmgir, Lucknow
1260 A.H. and Ruqaat-e-Alamgiri Lahore 1281 A.H.
and also in Elliot VII, p. 203. The reference given
by me in the book is mostly to Waqae Alamgir whose
contents tally with those of the MSS. in the British
Museum, Bodleian and the India Office Libraries.
3. Fuyuz ul Qawanjn Lucknow.
This is a collection of Aurangzeb's orders and
regulations giving duties of various officers in the
form of letters. The MS. is in the possession of a
relation of H.H. the Ruler of Bhopal State and has
been referred to by Sir Jadunath Sarkar in his preface
to History of Aurangzeb.
4. Insha. Br. Mus. MS. Add. 7,689.
5. Do. Br. Mus. MS. Add. 9,697.
These two collections contain forms of civil
contract, duties of various officers, and different kinds
of drafts used in offices.
6. Arzdasht. Collection of letters of MuzafFar
Khan by his News-writer. Br. Mus. MS. Add. 16,8 59.
The author was attached to an old nobleman of
THE SOURCES OF INFORMATION 47
Shahjahan's reign. In the middle of the book refer-
ence is given to letters of a Mir Adi which give in-
formation regarding judicial matters.
II. Persian Authorities
1. Travels of Ibn Batuta. (Arabic)
(1) , Translated by Lee.
(2) Edited by Gibb London.
Ibn Batuta was a well known Arab traveller who
visited India in the time of Muhammad Tughlaq.
He was appointed Qazi of Delhi. He gives occasional
references to the work of his court and his relations
with the King.
2. Tarikh-e-Firoz Shahi by Zia Uddin Barni.
Bib. Indica (Elliot III, pp. 97-268).
This is a history of the Delhi rulers from 662
A.H. to 758 A.H. "designed as a continuation of
Tabaqat e Nasiri". It is an indispensable book for
the study of the Sultanate administration. The author
held for some time the position of a judge and possesses
fair and independent judgment. His comments on
the duties and qualifications of the Kings and of the
Qazis are of great importance.
3 . Tarikh-e-Sher Shahi by Abbas Khan. Tuhfa-
e-Akbar Shahi. (i) MS. King's College, Cambridge.
(2) Br. Mus. MS. Or. 164, 1,782. (3) MS. 222
This gives a general survey of the administration
in the time of Sher Shah Translated in Elliot IV, pp.
4. Tabaqat e Akbari by Nizam Uddin.
48 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Deals with the history of Muslim Kings of Delhi
and chiefly with the general aspect of Akbar's reign.
5. Muntakhab ut Tawarikh by Abdul Qadir
Badaoni. (i) Bib. Indica Series. (2) Translation by
The author was an orthodox Muslim and dis-
liked Akbar's religious policy. He has several criti-
cisms to make in respect of Akbar's disregard of the
letter of the Law. The first volume which deals with
the rulers who existed before Akbar is only a summary
6. Chahar Chaman. Br. Mus. MS. Or. 1892.
MS. Add. 16863; by Chanderbhan Brahman. MS.
The author was a distinguished Persian scholar
of the time of Shahjahan. He deals mostly with the
duties of a Chief Minister and gives a general account
of the administration under the Mughals. He writes
with enthusiasm about the splendour of the Court
of Shahjahan. The work has been fully utilised by
Dr. Ibn Hasan in his "Central Structure of the Mu-
7. Muntakhab-ul-Lubab by Khafi Khan. Bib.
Indica, 2 Vols.
This book has been utilised by several historians.
The first volume deals with Taimur and his descen-
dants up to Shahjahan. The second contains an ac-
count of the reign of Aurangzeb and at some places,
criticism of his policy, especially in regard to his hesi-
tating to inflict the adequate penalty after conviction
in each case. Kennedy (Vol. II, pp. 84-86) thinks that
Khafi Khan's work is a most reliable authority on
THE SOURCES OF INFORMATION 49
contemporary Mughal period.
8. Mirat-e-Ahmadi. Br. Mus. MS. Add. 6,580
A history of the Province of Gujrat by Ali
Muhammad Khan. The book has recently been pub-
lished in Baroda in 3 volumes by Professor Nawab
Ali of Neotani and Mr. Seddon, I.C.S. (retired). The
first two volumes give the original and the third is a
translation supplement. The author was once Diwan
of Gujrat and has given comprehensive notes on the
administration of the Province and his is a most use-
ful book for the study of the judicial administration
under the Mughals.
9. Maasir e Alamgiri by Saqi Mustaid Khan.
(2) Bib. Ind. printed Calcutta 1870-1871 referred to
in Elliot, Vol. VII, pp. 181-197.
The author was a Waqae Nawis and was requested
by Enayetullah, the famous Secretary of Aurangzeb
to write the history of Alamgir after the loth year of
his accession. The book gives a short account of the
Fatawa-e-Alamgiri and deals generally with the poli-
tical conditions of Aurangzeb's reign. James Bird
has also translated portions of this book in his Poli-
tical and Statistical History of Gujrat.
10. Tarikh-e-Ferishtah Translation of 2 Vols.
by Dow by Briggs 4 Vols.
No systematic account of the judicial system is
given but occasional instances of methods employed
in meting out justice are mentioned.
n. Seirul Mutakhirin by Ghulam Husain from
Dedicated to Warren Hastings, gives an account
50 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of the later Mughals.
12. Mirat-e-Sikandari History of the Kings
of Gujrat. Br. Mus. MS. Add. 26,277.
From 620 A.D. to 1600 A.D. gives a general
account of Gujrat States.
13. Maasir-ul-Umra Br. Mus. MS. Add. 6565-
6566 or Bib. Indica series by Samsam ud Daulah.
Gives lives of the Mughal Amirs (Barons). It
is incidentally an extremely interesting account of the
government of those days.
III. Foreign Travellers
Students of this particular aspect of Muslim
administration in India must feel grateful to the
foreign scholars like Al Beruni, Hamilton, Bernier,
Manucci, Monserrate and Manrique for having given
us a number of cases decided by the Judges during
the period they were in India.
1, Al Beruni.
Abu Raihan Muhammad, son of Ahmad Al Beruni
973-1048 A.D. visited India in the early nth century
A.D. and wrote an account of its people. He has an
international reputation as a mathematician and an
astrologer and his observations on the learning and
culture of the people in the nth century A.D. India
are valuable. The book Tarikh ul Hind has been
translated into English by Dr. Sachau.
2. Monserrate 1 5 80-1 5 82.
Father Monserrate was a Christian Missionary
at the Court of Akbar. His Commentary translated
by J. S. Hoyland (Oxford) mentions a few cases
THE SOURCES OF INFORMATION 5!
decided by Courts in Akbar's reign.
3. Sir Thomas Roe. Embassy of Sir Thomas
Roe edited by Sir William Foster Oxford.
Sir Thomas Roe was the Ambassador (1615-1617)
of King James of England to the Court of Jahangir.
He was a cultured man and the account given by him
in his "Journall" is both reliable and illuminating.
He has made occasional reference to cases decided
by Qazi's Courts.
4. Terry Edward. "Voyage to East India".
London 1655. This book is a supplement to Roe's
Terry is a critical observer of the customs and the
institutions that existed in Muslim India.
5. Manrique, S. Travels, 2 Vols. (1629-1643)
published in Latin in 1649. Translation by Hakluyt
He seems to be biassed against Muslims whom he
calls "Barbarians", II, p. 144 and their Quran
"obscene" but was "astonished and surprised to see so
much polite usage and good order in practice amongst
such barbarians", p. 218, Vol. II. The account given
by him, however, is both interesting and useful.
6. Bernier. "Travels in the Mughal Empire".
1656-68. Edited by Foster.
7. Manucci Storia du Mogor, 4 Vols. Edited
by W. Irvine. R.A.S. London.
These two works give a general impression of
the country and the people, and have particularly
referred to some trials of cases. Bernier seems to
compare every custom of France with that of India
and labours to prove the superiority of the former.
52 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
While Manucci was on the staff of Prince Data Shukoh
and has a strong dislike of his opponents, his des-
cription of Court proceedings does not show any
special bias even though he was himself the accused
in one case. The author wrote that he was making
an effort to give a "correct description" of cases,
(Vol. Ill, p. 265), but appears to possess a tendency
to rely upon hearsay evidence. All his references
should therefore be accepted with caution.
8. John Marshall Diary Edited by Professor
Sir Shafaat Ahmad Khan Oxford.
Marshall was an English traveller in the iyth
century A.D. He has given a general impression of
Mughal India and has referred to Courts as well.
9 . Captain Hamilton A Voyage to East Indies,
2 Vols. I.O.L.
Hamilton, an Englishman, visited India in the
reign of Aurangzeb and has at several places commen-
ted upon the laws and the customs of the people.
The work has not been utilised by historians so far.
Sir William Foster has recently edited the book with
/ ty LATER COMPILATIONS
The most useful work in this connection is
Kitabul Ikhtyar written in Persian in 1212-1217 A.H.
i.e., 1798-1803 A.D. by Hazaqat Khan who was
connected with the criminal courts in Muhammada-
bad, Hyderabad State. His aim was to compile a
w r ork which might facilitate decision of criminal cases.
The book has been published with comprehensive
notes in Urdu by Ahmad Sharif at Azamgarh. Re-
ference has been given by the author to cases decided
THE SOURCES OF INFORMATION 53
by various Muslim Courts, but without details of places
or the parties. No conclusions regarding the judicial
system of the period can be drawn from a perusal of
this book although the tendency of Courts in decid-
ing criminal cases can be ascertained. This book
has not been utilised by any author so far. The MS.
in the British Museum is Add. 22,714. The book
has been printed in Calcutta.
Alexander Dow, History of Hindustan, 3 Vols.
Calcutta 1772 A.D.
Lt. -Colonel Alexander Dow was an Orientalist
and a civil servant under the East India Company.
He translated the history written by Ferishtah in the
first 2 Volumes and prepared a third along with his
report on the judicial reforms and submitted them in
1772 A.D. to Warren Hastings. The first two chap-
ters in Volume III show how anxious Colonel Dow
was to improve the judicial machinery as it existed
then in Bengal. His comments on historical anec-
dotes have been discredited by Sir Jadunath Sarkar
and Professor Beni Prasad; but the inquiry of a train-
ed civil servant into the usefulness of the judicial
machinery, as it was, cannot be brushed aside as un-
Ibn Hasan Central Structure of the Mughal
This is a valuable book for the study of the Mu-
ghal administrative system at the centre. In the end
the author has given a brief outline of the central
judiciary. He has utilised nearly all the original
authorities of the period which deal with the general
aspect of the Mughal administration.
CONDITIONS IN MEDIEVAL INDIA
India in 1 206
When Qutub Uddin Aibek, the founder of the
Turkish Slave dynasty, established his government at
Delhi in 1206 the whole of the Indian peninsula was
not under him. The Turks had so far annexed Mul-
tan (1175-1176), the Punjab (1187), Ajmer, Delhi,
Qannauj (1191-1193), Benares, Bihar, Bengal
and Bundelkhand (1197-1203). The Chalukyas of
Cutch, and Kalingas of Orissa, the Kakatyas, the
Yadavas and the Cholas of South India were still
With the exception of the western Punjab and
western Rajputana the people living in the country
were mainly Hindus. Hindu society as described
by the writers of the period consisted of four castes
and a number of non-caste groups, the Brahmans or
the priests, the Kshattryas or the warriors, the Vaishas
or the businessmen and the Sudras or the slaves. 1
Birth alone settled the classification in each case. The
rules of distinction were so strictly observed that
if a Brahman ate "in the house of a Sudra for sundry
1 The Vedas are four, Rig Veda, Atharwa Veda, Yajur
Veda, Sam Veda and are the chief sacred books of the Hin-
dus. Manu in his commentary has described in detail this
division of society.
58 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
days he was expelled from his caste and could never
regain it". 1
The first three castes were admitted into one
pale, but the members of the last one, namely the
Sudra, were no better than slaves (Manu, Ch. VI.
Jones Tr.). They could not marry a woman of a
better caste. The classes did not eat their meals to-
gether and a Brahman was prohibited from eating food
cooked by a member of any other caste.
The Hindu Administration
The administrative structure of Hindu society
was founded on the principles enunciated by their
Law-giver, Manu, about the time of the death of
Jesus Christ, 2 and described by commentators like
Yajnavalkya, Kautilya and others. The govern-
ment was vested in an absolute ruler whose title was
considered divine. 3 He was expected to conduct
his administration through civil officers. The king-
dom was divided into provinces, divisions, districts
and groups of villages. The last named formed the
first unit of administration possessing a certain amount
of local self-government working under the super-
vision of Royal officers.
The King was also the chief justiciary of the
State. He was, like the other judges, entitled to five
1 Al Beruni II, p. 163.
2 Jayaswal says ist century B.C. (pp. 20-21). Max Muller
thinks 4th century A.D. Elphinstone's estimate of 9th cen-
tury B.C. seems to me too wide. Buhler is of opinion that
the date is 2nd century A.D.
3 Manu, Ch. VII, pp. 1-13. Reference is to English
Translation by Sir William Jones.
CONDITIONS IN MEDIEVAL INDIA 59
per cent on all debts admitted by the defendant on
trial and to ten per cent on all denied and proved.
(Manu, Ch. VIII, p. 139). He was expected to warn
the parties beforehand of the seriousness of the offence
of perjury and of the punishment which the perjurer
would undergo in a future state.
Trials of Cases
There were eight constitutional parts of a judicial
proceeding, namely King, Judge, Assessors, Law
Books, Accountant, Scribe, Gold and Fire ordeal and
Water. According to Al Beruni 1 the witnesses in each
case were not to be less than four unless the fact was
one clearly established and oaths varied according to
the nature of the object claimed. In a criminal case
if the article stolen was not important, the accused
was allowed to swear before five learned Brahmans.
Persons having a pecuniary interest in the cause,
infamous villains, servants and friends attached to the
party were not allowed to give evidence.
Trials by ordeal were frequently resorted to. 2
In some cases the accused was made to take a caustic
drink (Bish). It was believed that if he spoke the truth
the drink would do no harm to him. Similarly
an accused person was often thrown into water. If
he was innocent, he would not drown.
There was a still more drastic form of ordeal.
An accused was required to hold in his hand a red hot
iron wrapped in a leaf in order to establish his defence,
1 Al Beruni's India II, pp. 160-163.
2 Compare Jayaswal, pp. 134-139. Al Beruni II, pp/i 5 9-
160. Elliot I, p. 329. Marshall, p. 374.
60 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
The trial of cases was entrusted to local assem-
blies in the first instance. The punishments awarded
by courts were severe. Sometimes the criminals
were outcasted or imprisoned for life. In cases of
theft, punishment depended upon the value of the
stolen object. Even Brahmans were not exempt
from heavy penalties. Expiation was recognised as
a form of punishment.
There were appeals too on payment of fee.
The King, as the final Court of Appeal, was
enjoined to check falsehood and strive after truth and
justice, since it was from these that happiness sprang.
The Brahmans as a class monopolised legal learn-
ing and the judicial posts, and ruled as an oligarchy.
They arrogated to themselves special privileges. 1
"If the murderer was a Brahman", says Al Beruni,
"and the murdered person a member of another caste,
he was only bound to do expiation consisting of fast-
ing, prayers and almsgiving". This Brahman concep-
tion of a functionary society and birth predilection
gave rise to acute caste ramifications and class hatred. 2
It prevented, more than anything else, the unification
of all the followers of the Vedic religion into one
nation. The administration of the Sultans and of the
Mughals that followed that of the Brahmans was a
little different in character. It did not favour class
distinctions and was in a sense more patriarchal
1 Compare Grady, Institutes of Hindu Law, p. 193.
2 Compare Dutt, India Past and Present, London 1890, pp.
CONDITIONS IN MEDIEVAL INDIA 6l
and, of necessity, arbitrary. 1 It had replaced govern-
ments which were carried on by the followers of an
entirely different religion who formed the bulk of the
population. The new administration had thus to
keep the idea of its own self-preservation above
Despotic character of Medieval State
The medieval Indian state remained autocratic
in character throughout, and represented in India the
western ideal of Tetat c'est moi of the French
monarchs. The domain of legislation, as was the
case in medieval Europe, did not belong to the people,
and in India there were many different sets of people.
They all looked upon the king as the fountain of
justice and were content to be thankful if he was
strong enough to maintain an efficient administra-
Sultanate an alien institution
The Turkish administration in India was an alien
rule to begin with. The ideas and intellectual back-
ground of the rulers were not indigenous and the
foreign element was re-inforced constantly by new
invaders and their followers. Yet since these latter
tended to settle down on the soil and to make India
their home, they became in turn imbued by the per-
1 Compare: i. Ala Uddin's address, Barni, pp. 290-1.
2. Beveridge I, p. 82. 3. Md. Tughlaq's conversation,
Barni, pp. 510-22. 4. Mirat I, p. 341.
2 Compare Briggs II, p. 326; Elphinstono "The will
of a wise Prince was better than the opinions of variable
bodies of men,"
62 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
vading spirit; so that judicial as well as revenue and
military administration bore the particular local stamp.
Thus, notwithstanding a strong family likeness to
those of western Asiatic countries, the distinctive
Indian character of public institutions was discernible
Influence of Village Assemblies
The village assemblies or Panchayets as they are
still called, which had been managing local affairs,
executive and judicial for several centuries 1 and had
grown into powerful bodies, obtained due recogni-
tion in all medieval states. Their functioning was
not interfered with, although the decrees given by
them were sometimes not quite in conformity with
the law of the kingdom, and were based on local cus-
toms. 2 No attempt seems to have been made by the
administrators to modify by legislation local tradi-
tions so as to bring them into strict accordance with
the rules of the State Law. They merely let them
exist as they were. As pointed out by Sir H. S.
Maine the law of the Panchayets was their own. The
people had fewer disputes, and in many cases settled
them locally without calling in the aid of the law courts.
The decision of a Panchayet was binding on the parties
and was as a rule non-appealable. The decrees were
obeyed on pain of excommunication.
The Panchayet system of settling disputes in the
1 Compare Report of the Select Committee of the House
of Commons, 1832, Vol. Ill and the note of Sir Charles Met-
2 Compare (i) the customs of the Nairs in Malabar. (2)
Customary Law of the Punjab by Wilson, p. 59.
CONDITIONS IN MEDIEVAL INDIA 63
villages continued long after the medieval empires
had broken up and even today we find a partial recogni-
tion of it by the legislatures of the different provinces
in India. In the United Provinces, the Panchayets
are regulated in matters of civil disputes by the U.P.
Village Panchayet Act VI of 1920 and attempts are
now being made to restore to them some of their
Hindu and Muslim Systems
The Hindu legal system so far resembled that of
the Muslims, which succeeded it in the larger part of
India and which will be discussed hereafter, that both
were founded on books believed by their respective
followers to be divinely inspired, namely the Vedas
and the Quran. The Law derived from the former
was expounded by Manu in his Manu Samhita, 1 and the
rules of conduct prescribed in the latter found ampli-
fication in well-known commentaries like Sahih
Muslim, Kitabus Sunnan by Abu Daood Sijistani,
Muwatta, Minhajut-Talebin, Jame-us-Saghir etc. Both
systems laid emphasis on the trial of cases by the Ruler
himself 2 and on his duty to select good men to act as
In neither was any importance attached to Judge-
made law. There was no regular method of recording
and transmitting points of law established during the
day to day administration of justice, but local tradi-
1 Other commentaries of importance are of Yajnavalkya,
Narada and Birahaspati.
2 Compare (i) Manu, Ch. VIII, p. 152. (2) Quran. Inni
Jaalna Khalifah. Yahkama Bainan Nas Bil Haq.
64 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
tions where they could secure a niche in some chance
commentary tended to perpetuate them in a Judge's
It may be for this reason that the gradual re-
placement of the Hindu judicial system by Muslim
institutions in practically the whole of India as the
Sultanate and the Mughal Empires were extended,
passed without much notice by the masses.
CONCEPTION OF JUSTICE IN MUSLIM
Meaning of Sovereignty
Muhammad's message as the Prophet of Islam
was an emphatic appeal to the people to obey God
the Omnipotent Being Who alone possessed the attri-
butes of Sovereignty. The Prophet claimed for him-
self no better status than that of an ordinary human
being. 1 The ruler of the Islamic state was only
God's servant (Abd) on earth who was responsible for
seeing that His Laws were duly obeyed. 2 (Az saltanat
wa badshahi wa khilafat o geti panahi pevastae ijrae
ahkame ilahi maqsud wa manzur ast). Zia Uddin
Barni, the author of Tarikh-e-Firoz Shahi felt proud
in India of Sultan Firoz Tughlaq (i 3 5 i-i 3 8 5) as during
his reign the commandments of the Quran were
faithfully carried out. 3 About two centuries later
Sher Shah (1540-1545) while pronouncing an order 4
is said to have declared that "crime and violence
prevent the development of prosperity ...... It behoves
Kings to be grateful for the favour that the Lord has
1 See Quran: qul ana basharun mislokum.
2 Alamgir Namah, p. 391. (i) Compare Waqae Alamgir
pp. 125-126. (2) Zakhiratul Muluk. I.O.L., p. 89. (3) Mirat
Vol. I, p. 251.
8 Barni, p. 578.
4 Compare Elliot IV, p. 410. Compare Aurangzeb's
remarks, Storia III, p. 261.
66 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
made His people subject to them and, therefore, not
to disobey the Commandment of God."
The ruler in Islam was not the people's master,
but only held an office in trust 1 for the Supreme Being.
In 1661 while refusing to allow possession of crown
jewels to Shahjahan, Aurangseb wrote that he was
holding them as God's chosen custodian and that he
was a trustee of God's money for the benefit of His
The sovereignty it} a Muslim state essentially
belonged to God. 2 The Muslim Kings in India in
general regarded themselves as God's humble ser-
.vants (Nyazmand-e-dargah-e-Ilahi). 3 The ruler was
His delegate duly elected by His people to perform
certain functions and he could be deposed 4 by them
if he acted against the Divine Law promulgated in
the Quran (KJhalase badshahan az mabashirat maam-
lat e mazkur ke dar an razae khuda nest..4iest).
Ala Uddin Khilji (1295-1315), Muhammad Tughlaq
(1325-1351) and Akbar (1556-1605) who were by no
means monarchs of orthodox tastes were careful to
exhibit in public their reverence for religion. The
1 Compare Anecdotes (Sarkar) p. no; Aurangzeb's letter
to Aqil Khan. Mirat I, p. 258: bedae wadae Afridgar.
2 (i) Kitabul Kharaj, pp. 3-5. (2) Arnold, Legacy of Islam,
p. 286. (3) Fitzgerald, p. 26. (4) Kennedy II, p. 7. Akbar's
reply to his advisers: "The decree is God's decree and of
Him alone is Sovereignty".
8 Compare Tuzuk, p. 24.
4 Compare (i) the frequent dynastic changes in Muslim
India. Appendix A. (2) Sarkar (1935) pp. 16-17. (3) Briggs
I, pp. 225-227.' (4) Sujan Rae, p. 135. The Qazi of Jaunpur in
1569 declared certain regulations of Akbar as illegal and an
attempt was made to depose him. Darbar e Akbari, p. 64.
CONCEPTION OF JUSTICE IN MUSLIM STATES 6j
author of Ain c Akbari says 1 that Akbar "passed every
moment of his life in self-examination or in adoration
of God". Father Monserrate writes 2 that Akbar
was most stern in dealing with offences against faith.
Responsibility to God X
It would thus appear that in Islam the whole
community had by implication a responsibility 3 to see
that God's commands were obeyed though it was,
for practical purposes, always delegated to the ruler.
The administration of justice was an essential 4 act for
the fulfilment of that responsibility. Sher Shah con-
sidered justice as the most excellent of religious rites. 5
"Jahangir regarded the daily administration of
justice in public as one of his most sacred duties". 6
Shahjahan once remarked in court that "justice
was the mainstay of his government" (Ritq o fitq
e mulk o mal munhasir bar fahcm o insafast) 7
and according to Aurangzeb the "garden of ad-
ministration was watered by the rain of Justice"
(gulistan e saltanat ba sahab e adl). The command
in the Quran was to do justice 8 bet\veen man and man
and had to be obeyed.
The King as the chosen representative of the
people was expected to exercise this authority either
1 Ain I, Bloch, p. 154.
2 pp. 209-210.
3 Compare Minhaj,p. 500.
4 Quran. Bil adl qamatis samawat o wal arz. Compare
Mirat I, p. 268. Barni, pp. 39-43.
Elliot IV, p. 411.
6 C.H. of India, IV, p. 182.
7 MS. 370. 1.O.L.
8 Quran "Innallah ya murukum bil adl wal ehsan."
68 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
personally as Imam e Adil (just leader) or through
officers appointed for the purpose. 1 The ruler and
his selected officers were to do what was "just and
right" in the sight of God to Whom alone they were
answerable. 2 A Muslim Qazi giving an order or hold-
ing views in contravention of the Divine Law was a
'Kafir' apostate 3 and liable to a sentence of death 4
and to eternal degradation. Aurangzeb, in review-
ing an order of Khan e Jahan reprimanded him for
forgetting his responsibility to God. 5 This emphasis
on the individual responsibility of the officers has been
the keynote of judicial interpretation of law in Muslim
Indian States as well as in other Islamic countries.
Rttlers and Law Courts
The Muslim sovereigns in India even at the zenith
of their power and influence seldom, if at all, attempted
to tamper with the day to day administration of justice.
Historical research has not so far established any such
instance. On the contrary, there have been cases
in which they have bowed to the authority of the
Law Courts sometimes against their will. 6 In State
1 Ain II, Jarrett, p. 41, Vol. I, Text, p. 283.
2 Compare (i) Zakhiratul Muluk p. 89. (2) Baillie- Law
of Sale, p. LX. (3) Widow vs. King Ghyas, pp. 90-91, Stewart.
(4) In writing judgments the Qazis generally chose the title
"Khadim ush Shara" servant of the Shara' for themselves
8 Quran. Wa man lam yahkam be ma anzalallaho fa olae-
kahumul kafiroon. Al qaza fil Islam, p. 5 .
4 State vs. Qazi Mir, Storia IV, 118-119.
5 Waqae, p. 72. Compare (i) Ruqaat. Br. Mus. MS. Add.
26, 239, f34. (2) Anecdotes, p. 91.
6 Vide State vs. Sidi Maula. Badaoni I, pp. 170-171. State
vs. Nurjahan. Tuzuk. Shibli, p. 30. Widow vs. King Ghyas.
CONCEPTION OF JUSTICE IN MUSLIM STATES 69
versus Qazi Mir (StoriaIV,p. 119), a Canon Law case
the court refused to award the sentence of death for
which Aurangzeb had directed the Public Prosecutor
to press. Similarly in contempt of court cases the
maximum penalty was allowed to be given against
government officials. 1 It was perhaps to the Kings'
own benefit as it kept up the prestige of their own
Law Courts which under the Shara' it was their duty
It was true that there were rulers like Muhammad
Tughlaq who filed a libel suit in the Qazi's Court
and on losing it put the defendant under arrest on some
other excuse, 2 but this attitude was resented by the
community 3 and was not common. There were
Qazis like Mir Saiyad Muhammad, Miaji or Shaikhul
Islam Abdullah who held themselves subordinate
to none but God in giving judgments, 4 and yet they
commanded respect from sovereigns who were some
times not noted for their strict adherence to Shara*.
It is said of Qazi Sadr Uddin Sharif, Chief Justice of
Bahmani Kingdom, that he refused to join his post
after having gone on leave, until the King (Muhammad
Shah) undertook to permit Judges to execute the law
Stewart, pp. 90-91. Compare report of the learned men of
Lahore to Aurangzeb saying "never had it been heard of in
Hindustan that anyone had ventured to put forth a hand upon
the sacred person of a Qazi" Storia II, p. 254.
1 Hamid Uddin vs. Kam Bux, Khafi Khan, pp. 436-437.
II. Qazi Yusuf vs. Governor in Sadiq vs. Shakur. Sarkar,
Aurangzeb V, pp. 421-422. State vs. Yaqub and Nairn. Briggs
IV, p. 519.
2 Badaoni I, p. 239.
3 Ibid. Also compare Briggs I, p. 225.
4 Darbar e Akbari, Cal. Ed. 1914, p. 67. Mirat Supp., pp.
45-46. Compare Barni, p. 290,
JO ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
against the guilty. 1
Ameer All has pointed out 2 that the early Caliphs
of Islam could not alter or act contrary to the judg-
ments of the constituted courts.
It may be assumed, therefore, that the law courts
had freedom to record judgments in their own way.
The only limitation lay in the law itself w^hich they
were appointed to administer. If it was according
to Shara', the order of a Qazi had the same force as
the Shara' itself and obedience to it was a duty.
The Hanafi Law
The majority of the Indian Muslims had accepted
the Hanafi 3 Law, which was developed by Abu
Hanifah, the great jurist of Arabia and amplified by his
disciples, Abu Yusuf, 4 Chief Justice of Baghdad, and
Imam Muhammad. 5 There were non-Hanafi States
in the South 6 and one later in Oudh, but there was
no difference 7 in their respective systems of adminis-
tration of justice, since questions of personal law
affected in no way the constitution or the working
of the law courts.
As noticed in the 'Hidayah' and the Fatawa e
Alamgiri the courts in Muslim India were to be guid-
ed by the following authorities 8 in deciding cases: -
1 Briggs IV, pp. 323-3 2 5
2 Spirit of Islam, p. 280.
8 Compare Fatawa (Baillie) p. XXVIII. Mirat I, p. 268.
Maasir e Alamgiri, p. 529.
4 Author of Kitabul Kharaj.
5 Author of Jame us Saghir.
6 Bijapur and Golconda.
7 See the trial of cases. Safir e Oudh, p. 6. Compare
Wilson, p. 23.
8 Hidayah, pp. XXV-XXVI.
CONCEPTION OF JUSTICE IN MUSLIM STATES JI
1. The Quran.
2. The Sunan, practice of the Prophet or the
traditions as they were called. The Quran and the
Sunan are the Usul-ul-Usul or as Dr. Vesey-Fitz
gerald (p. 5) has said "the bases of the bases".
3 . Concurrent opinion of the Prophet's compa-
4. Concensus of opinion (Ijmaa'ul ummat) 1
among the most learned of the Prophet's followers.
The most popular work containing such opinions was
Al Hidayah. It was generally accepted as the leading
authority in the Turkish courts and in practically the
whole of Muslim India, until replaced by the Fatawa-
5. Their own individual judgment. Accord-
ing to Abu Hanifah the Qazis could act on the princi-
ples of Istihsan (public good) Istislah (public policy)
or Istishab (concordance).
Classification of L J a^vs
3The laws that were prescribed or promulgated
were not codified in the modern sense but could be
classified under several heads, and notably three, the
Canon Law, the Common Law and the Regulations
known as Tashriyah (religious) and Ghair Tashriyah
The Canon Law
The Canon Law (Ahkam e Shariyah) was the
personal law of the Muslims and was applied exclusive-
ly in religious matters such as apostasy, and other
1 Ameer All, M. Law, II, p. 7.
JZ ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
offences against God. It also formed the basis of
the Muslim Adjective Law. A coutt of Canon Law
had no executive authority and had nothing to do with
the advancement of the Muslim religion. It was
merely a Court which tried offenders. Non-Muslims
were excluded 1 from the penal provisions of the Canon
The Common LMW
The Common Law consisted of the Islamic Law
of Crimes, Tort, Nuisance, etc., and applied to all
the subjects of the state irrespective of religion though
in the matter of sentence the Muslims were, in offences
like adultery 2 and drunkenness, 3 subjected to more
severe penalties. The distinction between the Mus-
lims and the non-Muslims was, however, not allowed
to work to the disadvantage of the non-Muslims. 4
Sometimes perhaps on grounds of public policy they
were granted a reprieve in full. 5
Qanun e Shahi
The third set of laws were the regulations issued
from time to time by the monarchs in the form of
proclamations, known as Farmans and Dasturul
1 Compare: (i) Baillie, p. 174. (2) Rahim, p. 59. (3)
Jahangir's Farman. Fraser MS. 228 Oxford. (4) Offences such
as selling of pig's meat, could not be committed by a Hindu.
Compare Fatawa, p. 174 (Baillie).
2 Compare Kitabul Ikhtyar, pp. 28, 122.
8 Kitabul Ikhtyar, p. 138; Sharhe Waqayah.
4 See (i) Aurangzeb's order on the complaint of Amin,
son of Bahar Uddin. Waqae, p. 59. (2) Mirat I, pp. 277-283.
6 Vide State versus Rae Rae Singh mentioned in Tuzuk
S.A., p. 62.
CONCEPTION OF JUSTICE IN MUSLIM STATES 73
Amals. 1 They were called Qanun e Shahi. 2 They
may be compared with the edicts of th Roman
Emperors or the Orders in Council issued by the
British King or the Qanun of the Turkish Sultans.
Such regulations are contained in collections like Ain
e Akbari, Zawabit e Alamgiri.
The sphere of Qanun e Shahi was naturally large.
The ruler could make and unmake regulations, for
on many matters of detail the Quran could not pro-
vide a solution, revealed as it had been in a very
different state of society.
Qanun e Urf
A fourth set of Laws which had their origin nei-
ther in the Quran nor in the Farmans, consisted of
local customs Qanun e Urf.
In the absence of codes, customary Law naturally
played an important part. 3 The customs and prac-
tices of the inhabitants of India were too deep rooted
for interference so that a large number of Muslim con-
verts carried with them into the Muslim fold tradi-
tions that ran counter to the tenets of Islam. For
instance in the greater part of the Punjab females were
and are excluded from inheritance in the villages in
spite of the specific provisions of the Shara' to the
1 Dastur literally means Convention. The term was first
applied to the Rules and Regulations issued by the Caliphs of
2 Also called (i) Laws of the Empire. See Shah Alam's
farman granting Diwani to Clive in 1765. (2) Qawanin o
Zawabit. Mirat I. p. 258.
3 Compare Maine "In India the Legislator derives his
sanction from the custom of the people".
74 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
contrary. 1 In Mian Khan versus Bibijan (5 B. L. R.
p. 500) the High Court of Calcutta found proof that
for a considerable time before the establishment of
British administration loans on interest by Muslims
had been recognised in spite of their prohibition by
the sacred law.
Such conventions or un-\vritten laws of local
custom and practice have, in Muslim legal phraseology
become known as Urf, i.e., what is accepted by the
community. History tells us that there have not
been lacking attempts to regard "Urf" as one of the
roots of the Fiqh or Muslim Jurisprudence and thus
to reconcile the rigidity of law with local require-
ments. 2 Whether this giving to local customs, which
were sometimes contrary to Islamic tenets, a recog-
nised position in the legal system was voluntary or
whether it was forced by circumstances, it proved to
be an expedient useful to the Muslim Kings and helped
to augment their powder. It resulted to a certain ex-
tent in the intermingling of the two peoples; the
Hindus taking to Muslim methods and the Mussul-
mans adopting customs or the converts retaining
habits which were fundamentally opposed to the
strict principles of the Islamic faith. 3
1 Compare Punjab Customary Law by Wilson, p. 59.
Compare Moplah practices of Hindu rituals Malabar Gazet-
teer, p. 196.
2 Compare Ameer Ali, Islamic Culture 1927. p. 94.
8 See Tupper II. p. 131. In the Sialkot district in certain
villages only the Hindus adopted the Muslim Law of giving
inheritance to females; similarly the transfer of property by
gift to women was accepted by the Hindus. Vol. II, pp. 70-75.
See also II, pp. 88-89, I 57~ 2 59*
CONCEPTION OF JUSTICE IN MUSLIM STATES 75
Fifthly the Law Courts were permitted to look to
precedents established by other courts. There were
"Muftis' or Jurists attached to the Law Courts who
used "to spend night and day in search of precedents", 1
for the guidance of the courts, but, as Mawardi has
pointed 2 out, the Qazi had to use his own legal facul-
ties and was not bound to follow decisions given by
other courts even though they might be those of his
own superior court a striking contrast with the
practice prevailing in the British Indian Courts today.
If the question involved was open to an expert's
opinion, that opinion was considered relevant, and
could be accepted 3 if it was not rebutted in any other
case. The general practice, however, seems to have
been to invest courts with discretion in all such
Equity and good Conscience
Lastly, the courts were enjoined to act, when
there w^as no clear law, on the principles of equity
and good conscience. 5 Lord Parker of Waddington in
Hamira Bibi versus Zubaida Bibi observes 6 that the
chapters on the duties of Qazis in the principal
works on Muhammadan Law clearly show that the
1 Sarkar (1920), p. 37.
2 Compare J. R. A. S. 1910, p. 765. Rahim, pp. 179-181.
3 Compare Al Faruq by Shibli, p. 60 See Aga Mohd. vs.
Kulsum Bibi, 25 Cal. p. 9. (P.C.).
4 Kitabul Ikhtyar, p. 23.
5 See Fatawalll. pp. 383-386. (Kitab Abdul Qazi). Com-
pare Siratun Nabi II. p. 245.
6 L. R. 43 (1916) I. A. pp. 301-302.
j6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
tules of Equity and equitable considerations commonly,
recognised in the courts of Chancery in England
were in fact often referred to and invoked in the ad-
judication of cases. The collection of select Jurists*
^opinion in the Fatawa e Alamgiri was primarily
meant to guide judicial discretion on the lines of
In the absence of codes (the nearest approach to
which was Aurangzeb's Fatawa e Alamgiri) the writ-
ten law was contained in official manuals 1 and in the
edicts issued by the monarchs, copies 2 of which were
circulated among the people. 3 Sir Thomas Roe's
remark 4 in 1615-16 that "laws they have none written,"
but understood by all supports this conclusion. Ru-
lers like Aurangzeb took particular care to get the law
carefully drafted 5 and properly notified 6 (dar har
shaher wa dar har parganah wa qasbah dae wa shae
For the observance of Shara' rules among the
'Muslims and of the general rules of morality in accor-
dance with the Law of Islam among all, special officers
(Mohtasibs) were appointed and they had a separate
1 For instance Dasturul Amal MS. 162 K. C C.
2 All Muhammad Khan refers to "Naql" in Mirat I.
p. 268. Mirat I. p. 283.
3 See Mirat I, p. 259.
pp. 251, 283.
p. 171. Tuzuk S. A. p. 4. Compare Dow
III. p. XXXIII.
4 Compare Roe, p. 89, p. 104.
5 Compare Ibn Hasan Chapter on Farmans, pp. 92-106.
6 Mirat I, pp. 25 i, 258, 268; Dow III, p. XXXIII. "edicts
arere transmitted to every district; they were publicly read".
CONCEPTION OF JUSTICE IN MUSLIM STATES JJ
department 1 of their own during the Sultanate and
The application to non-Muslims of these sets of
laws, as would appear from the Fatawa e Alamgiri, 2
was regulated by the proclamations 3 and the edicts
that were issued from time to time. Where nothing
was mentioned about non-Muslims only such por-
tions of the laws were made applicable to them as
were not specifically identified with the tenets of the
Islamic faith. 4 For example they could not be
prosecuted for eating pig or for denying the Prophet
Muhammad's position as the messenger of God, for
which the Muslims alone could be punished. The
Law of Shara' as derived from the Usul ul Usul was
in fact intended for the 'believers' in the Faith. The
'non-believers' were to be "let alone". 5
The King's officers in medieval India like the
Roman Praetors had thus to supplement that law for
the Hindus and others for whom it did not provide. 6
This principle of differentiating Muslims from
non-Muslims in the matter of crimes and punishments
or in the cognisance of cases in general by the Canon
Law Courts did not lead to any difficulty in the trial
1 Prof. Sarkar suggests in 'Mughal Administration' (1920),
pp. 29-32 that Aurangzeb introduced 'Mohtasibs' but it seems
that they existed already and were employed by the Sultans as
well. See Barni, p. 441.
2 Vol. II, pp. 347-357. Calc. Ed.
8 Mirat I, p. 250, and Farameen "Jamhur mutawattine
4 Fatawa II, p. 357. Sharh e Waqayah III. Chapter on
5 Quran 'Lakum denukum waliya Din*. Compare Fatawa
(Baillie), p. 174.
6 Compare Field, p. 134.
78 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of cases. Like the Judges 1 of the Anglo-Saxon
period the Qazis possessed jurisdiction both in
Common Law and Canon Law cases. The latter dealt
mainly with offences against religion, but charges
that could not be brought against non-Muslims were
dropped and sentences that did not apply to them
were not awarded in their cases. 2
If questions of Constitutional Law were ever
raised as occurred once in the Court of Mulla Muham-
mad Yazdi Qazi of Jaunpur, where an application to
get certain orders passed by Akbar, declared illegal 3
vras successfully made, no special Bench was created.
The Qazi of the place was regarded as having inherent
jurisdiction to try sucjh-' cases.
Kings position y
The task of providing for by legislation subjects
left out in the Quran and the Traditions was that of
the monarch. <,JBy virtue of his office he was the le-
gislator, the defender of the Laws 4 as well as the dis-
penser of Justice. The Prophet himself had decided
cases 5 and the Caliphs too heard original suits. 6
1 Compare History of English Law by Pollock and Mait-
land. The Bishop sat in the County Courts, the Church claimed
for him a large share in the direction of even secular justice
and the claim was fully allowed by Princes who could not
be charged with weakness", p. 40.
2 For instance a less severe sentence was given to them
for drinking intoxicating liquor.
3 Vide Darbar e Akbari. Cal. 1914. p. 64. Eng. Tr.
4 Compare Islamic faith by Sir T. Arnold.
5 Compare (i) Sahih Muslim Hadis reported by Ibn
Abbas and Ibn Daood (2) Encyclopaedia of Islam, p. 606. II.
(3) Al Qaza Fil Islam, p. 77.
6 Risael-e-Shibli, p. 62 Al Qaza Fil Islam, p. 87.
CONCEPTION OF JUSTICE IN MUSLIM STATES 79
The ruler of a Muslim State was de facto its Chief
Judge 1 Mauqaf e Dado Adi. 2 As the chief execu-
tive officer of the realm it was necessary and, indeed,
advantageous for him to respect 3 the Law and the
decrees of the courts that functioned under his own
aegis. He could not destroy or weaken an institution
of which he was himself the Chief.
As an individual he had no privileged position
though the combination of judicial and executive
functions in one person "as God's Shadow on earth"
inclined some of the Sultans to consider themselves
above the Law. 4 There is, however, no evidence
that it was the general practice. The Shara' did not
recognise the theory that the ruler could do no wrong.
A monarch could be sued 5 in Court and could also
sue. 6 Dr. Vesey-Fitzgerald refers 7 to cases in Arabia
where the Caliphs Omar and Rashid submitted to
decrees passed against them.
The Muslim ruler possessed the power of com-
1 See Quran. "We appointed a Caliph on earth and he
should do justice".
2 Alamgir Namah, p. 1097.
3 Compare Dow III, p. LII. "The Muhammadans carried
into their conquests a Code of Laws which circumscribed the
will of the Prince. The principles and precepts of the Coran
with the commentaries upon that book form an example of
body of Laws which the house of Timur always observed."
4 Compare (i) Ala Uddin's conversation withQaziMughis
Barni, pp. 289-294; (2) Muhammad Tughlaq's address to his
Judge Badaoni I, p. 239; Barni, pp. 510-515; and (3) The
constant use of the pedantic in the Farmans issued by them.
6 See Stewart, pp. 90-91. Widow vs. King Ghyas.
6 Vide Md. Tughlaq vs. Shikhzada Jami. Badaoni I, p. 239.
7 Muhammadan Law, pp. n, 32 compare Rahim, p. 21.
86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
muting sentences or what is nowadays called the
prerogative of mercy. It was not used by the first
four Caliphs of Islam, but according to Ameer Ali 1
was introduced in the 8th Century A.D. by the Caliph
Al Moa'vyah. It was exercised in India during the
Sultanate and the Mughal rule in practically every
kind of case ranging from theft to murder and dacoity
with murder. It enhanced the personal prestige of
the sovereign, and this fact may have influenced the
Mughal Emperors in their policy of insisting upon
death sentences being submitted to them for confirma-
tion in order that they might have opportunities of
commuting them in suitable cases. 2
Jahangir pardoned Rae Rae Singh after he had
been found guilty of treason. 3 Shahjahan in the
course of an order justified 4 his exercise of the prero-
gative on the basis of the sanction given by the Law
of Qisas (compensation) in the Shara'. Aurangzeb
granted a pardon 5 to Jaswant Singh twice and cons-
tantly used 6 his powers in favour of the accused
The ruler also exercised original jurisdiction.
In medieval India it was essential for the kings to try
cases personally, for there were powerful nobles who
sometimes would submit only to the decrees of the
King's Court. If the ruler was conscientious and sat
1 Spirit of Islam, p. 280.
2 Compare (i) Monserrate, p. 210; (2) Storia II, p. 419;
(3) A Voyage to Surat. Oxford 1929, p. 138.
8 Reference in Tuzuk S. A. p. 62.
4 MS. 37oI.O.L.
* Khafi Khan II, p. 64.
6 Compare Khafi Khan II, p. 550. Captain Hamilton I,
CONCEPTION OF JUSTICE IN MUSLIM STATES 8 1
punctually his court was often sought 1 by the people
as his decisions were "quick" and "genuinely im-
partial", his situation having placed him beyond the
limits of fear or of favour.
/As the Chief Judge it was the duty of the Sultan
to supervise the administration of justice and to ap-
point judicial officers Qazis to assist him in the
disposal of cases. Like The King of England 2 , he
alone 3 had the right to set up courts of judicature.
According to Muslim jurists the responsibility of
selecting suitable men as Qazis was very grave 4
(Nijat e Padshah na bashad).
Barni relates 5 the story of the appointment by the
Sultan Qutb Uddin of an incompetent man Qazi
Zia Uddin, to the office of Chief Justice which incited
the people to revolt and murder not only the Qazi
but the King himself. Akbar (1556-1605) approved
of the selection of well-informed men (Agahdilan) of
the realm to the judicial offices. 6 Aurangzeb used to
spend more time in the selection of Qazis than in mak-
ing appointments to any other post in the Empire, 7
although according to Ali Muhammad Khan 8 the
authority of appointing inferior Qazis (mansoob
1 Storia I, pp. 201-203.
2 Compare (i) Blackstone's Commentaries I, p. 266.
3 Compare Hidayah XX, p. 335.
4 Compare (i) Mawardi J. R. A. S. 1910, p. 767. Barni,
p. 352. (2) Barni, p. 351. Ala Uddin could select only four
persons during his reign who could act as Qazis. Other
candidates fell short of his standard. (3) Mihnaj ut Talebin,
p. 501. (4) Tabaqate Nasiri, p. 207.
6 pp. 4061-408, Bib. Indica.
6 Ain I, p. 283 (Text) Bib. Indica.
7 Compare (i) Dow III, p. 396. (2) Waqae Alamgir, p. 40.
8 Mirat. Supplement, p. 149.
82 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
namoodan e Arbab e Adalat) was sometimes dele-
gated 1 by the Mughal Emperors to the Sadtus Sudur
who issued their sanads or to the Chief Justice (Qazi
ul Quzat) (Fatawa III, p. 388 CaL Ed.) (Khafi Khan
II, p. 606). The King was also expected himself to
have a practical knowledge of Law as in theory he
alone could "remove the Qazis from their posts" (Al
Mawardi) and they held office during the King's
pleasure. 2 It is interesting to recall that at the time
these notions of constitutional practice were in vogue
in India, the British Parliament by the Declaration of
Rights Bill in 1689 insisted that the Judges should
hold office not during the King's pleasure but during
Qualifications of Qa^is
The Qazis who were thus selected were in most
cases men of learning and scholarship. 3 In order
that their appointment might conform to the require-
ments of Law the following points were considered: 4
A Qazi had to be:
(i) Adult male: According to Abu Hanifah a
woman could be a Qazi and Muslim Queens like
Raziah have tried cases Elphinstone, p. 368.
1 Compare Minhaj, p. 502. Sarkar, p. 35. (1920).
2 Fatawa e Alamgiri III, p. 393 Syasat Namah, p. 38.
3 Compare Appointment of Qazi Nizam Ucldin. Mirat
4 Compare (i) Mawarcli. Ahkam us Saltanyah, pp. 123-128.
(2) J.R.A.S. 1910, pp. 762-763. (3) Fiqh e Firoz Shahi. (4)
Fatawa e Alamgiri Adabul Qazi. (5) Kitabul Kharaj Adabul
Qazi. (6) Caliph Omar's letter to Governor Musa Al Ashari
referred to in J.R.A.S. 1910. (7) Hidayah BK.XX. pp. 334-352.
CONCEPTION OF JUSTICE IN MUSLIM STATES 83
(2) Intelligent and possessing sound discrimi-
nating judgment and independence. 1
(3) A free man: Slaves in Islam were not ex-
pected to act independently. The Kings of the
Slave dynasty were no longer slaves when they
ascended the throne. Sultan Iltutmish (1210-
36) had to satisfy the Qazis with regard to his
manumission before he could be accepted. 2
(4) A Muslim: Non-Muslims were not as a
rule appointed Qazis. According to Hidayah
strict adherence to the Sacred Law even in private
life was insisted upon. 3 The acceptance of office
entailed upon the incumbents a detailed study of
religious laws and sometimes of the duty of
leading the Friday prayers. Non-Muslims were
ineligible because they did not usually study 4
Muslim Law, but in other departments they were
freely employed. 5 Al Zaylai has recommended
the appointment of non-Muslims as Magistrates
and Judges to decide their own disputes. 6
1 Compare Waqae Alamgir, p. 40. Ruqaat.
2 Ibn Batuta. Elliot III. p. 591.
3 According to Darbar e Akbari, Cal. 1914, p. 67, Qazi
Mir Saiyad who was selected as a Qazi was a well-informed
lawyer who practised what he preached.
4 Compare Briggs II, p. 292. "Before whose (Ala Uddin
Husain 1350 A.D.) time the Brahmans (Hindus) never engaged
in public affairs but passed their lives in the duties of religion and
in the study of the Veclas indifferent to fortune, conceiving the
service to Prince to be destructive of virtue". The Brahmans
alone among the Hindus used to study Law in pre-Muslim days.
6 Compare (i) Maasirul Umara I, p. 101 (Order re. ap-
pointment of Rajah Toclar Mai). (2) Briggs II, pp. 284-92. (3)
Beveridge I, p. 141. (4) Waqae Alamgir Part Two, pp. 48-98,
I.O.L. (5) Captain Plamilton II, p. 24.
6 Durrul Mukhtar Calc. Ed. p. 521.
84 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
(5) An Adal i.e., capable of being a trustworthy
witness. Special heed was paid to a Qazi's
character and a high standard of conduct was
expected 1 of him. According to Zia Uddin
Barni purity of character was essential to a judicial
office. (Lazim e sharte Qa2a taqwast, p. 352).
In the time of Ala Uddin Khilji (1296-1316) a
Qazi who had started drinking liquor was prose-
cuted and sentenced to death, 2
(6) Of sound sight and hearing: As pointed
out in Hidayah 3 no judgment of a Qazi was re-
garded as valid if it was given at a time when his
understanding was not clear. As a rule no age
of retirement was fixed.
(7) Perfect in the knowledge of the Law:
According to Barni the post of a Qazi is one of
responsibility and only those persons who are
well versed in Law and are of good birth should
be appointed, (p. 352).
During the Sultanate and the Mughal period
selection for the post of Qazi was often made from
among the Professors of Law. 4 The Qazis
were further expected not to entertain parties or to
accept any gifts from strangers. 5 There were other
similar restrictions and there was also the risk of in-
1 Compare (i) Encyclopaedia of Islam, Vol. II, 606. "He
must according to Law be a Muslim scholar of blameless
life". (2) Barni, p. 298.
2 Badaoni I, p. 187.
8 Hidayah XX. p. 338.
4 Compare Elphinstone (1857), pp. 420-421. Tazkira e
Ulema e Hind, p. 54: Hadiequl Hanifiah, p. 434.
6 Compare (i) J.R.A.S. 1910, p. 772. (2) Hidayah BK.
XX. p. 337-
CONCEPTION OF JUSTICE IN MUSLIM STATES 8j
cutting the Ruler's displeasure. It was no wonder
that the office of Qazi was accepted with feat and
reluctance, 1 in the eatly days of Islam when strict
obedience to both the lettet and the spirit of law was
genetally enforced. Even in the time of Autangzeb
(1659-1707) public opinion was that the post should be
offered by the King and not applied fot. 2 Sazawat
nest kasai ki talabe Qa2a kunad.
Appointment to be announced * ""***"
The appointment and the jurisdiction of the Qazis
were to be made known 3 by the King so that people
should submit to their otders. 4 Temporary appoint-
ments and special tribunals also could be created 3
and were similarly "gazetted".
General functions oj Qa^is ^^^
The powers and functions of the Qazis were
wide and their responsibilities grave. 5 The order
of a Qasi's Court had to be obeyed. 6 In civil cases
each Qazi had the powers of the Judges of the English
King's Bench Division and in criminal cases they
tried all cases that ordinarily come before the Dis-
1 Compare Al Qaza fil Islam, p. 5 .
2 Hidayah XX. p. 335.
8 See Farman Baqiatj p. 6.
4 Compare (i) Mawardi J.R.A.S. 1910, p. 768. (2) Khafi
Khan II, p. 255.
6 (i) Amre khatir tar az qaza nest Aurangzeb in 343
Br. Mus. Add. 26, 239. (2) M. Said, a Magistrate was exe-
cuted by Shahjahan for giving a dishonest judgment. Storia
I. p. 197.
6 The phrase Qazae mabram "inevitable death" originated
from the fact that an order of a Qazi's Court could not be avoid-
ed as was the case with death. See Kalimatut Tayyebat Ox-
ford (MS.) Compare (i) Raqaem e Keram MS. F. 15. (Arju
ba hukmil Qazi). (2) Saracens by Ameer All, p. 62.
86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
trict Magistrates and the Sessions Judges in British
India and could also pass a sentence of death. 1 Like
the Judges of the Supreme Court of the United States
of America, they could declare 2 a Sovereign's order
illegal. They could call upon governors to resign
office if they exceeded their powers. 3 The people
and the King alike turned to the Chief Justice in times
of trouble. 4 They possessed powers "under the
Habeas Corpus Act" 6 like the judges under the old
system of Gaol Delivery in England. In criminal
matters they exercised the full jurisdiction conferred
on the District Magistrate under the Indian Criminal
Procedure Code, and also all powers corresponding
with those conferred on the modern District Judge
by the Guardian and Wards, Lunacy, Trust and Insol-
vency Acts of today. They possessed in fact all the
Common Law and Equity powers that could be given
to a court of original jurisdiction. The Qazis in
deciding cases were enjoined to think of God alone 6
and, as they were nearer to Him because of their know-
ledge of the Sacred Law and of their practice of it,
their influence was enormous. 7
The Chief Justice of the Empire and the Chief
Qazis of the Provinces had, like the modern Indian
x bandegane O Jail e shanahu ba qaulo tasdiq e Qazi
asir o qatil mi shawand Waqae, p. 40 I.O.L. The Mughal
Emperor Akbar started the practice of confirming the death
sentences himself. Compare Monserrate, pp. 209-210.
2 Darbar e Akbari. Cal. Tr. 1914. p. 64.
8 Compare Mawardi J.R.A.S. 1911, p. 637. Sarkar (1935),
pp. 1 6, 17.
4 Compare Briggs I, p. 227.
5 Hidayah, p. 336. Mirat I, pp. 278-283.
6 Compare Widow vs. King Ghyas. Stewart, pp. 90-91.
7 Compare Sarkar (1935) pp. 27, in.
CONCEPTION OF JUSTICE IN MUSLIM STATES 87
High Courts, the additional functions of supervising
the work of the inferior courts and of recpmmend-
ing candidates for appointment as Qa^is. 1
Vigour of the Law \ ^S
The Law of Shara' applied equally to all, and the
officers of the state were treated 2 like ordinary citi-
zens for personal disputes. Their position as such
officers gave them no immunity from the rigour of
the Law. Omar, the second Caliph of Islam, allowed
his officers no privileges. 3 The Sultans and the Mu-
ghal rulers in India followed the same course. If
their officers acted under the immediate command of
the Sovereign, they were probably not liable, but such
a defence had to be proved strictly. 4 The Muslim
Criminal Law did not favour any distinction between
a ruler and his subject.
1 (i) Compare Mirat I. p. 319. (2) Khafi Khan II. p.
606. (3) Compare Mahmucl of Ghazna, p. 149. (4) Fatawa III.
p. 388 Calc. (5) Al Qaza fil Islam, p. 9.
2 See (i) State vs. Malik Faiz Briggs I. p. 253. (2) State
vs. Prince Adil Erskine II, p. 445. (3) State vs. Yaqub and
another Briggs IV. p. 517. (4) State vs. Moqarrab Khan
Tuzuk S.A. p. 83. (5) State vs. Nurjahan. Tuzuk e Jahan-
giri, Shibli, p. 3, pp. 30-32. (6)* State vs. Murad Sarkar III. p.
437- (?) State vs. Faujdar Khafi Khan II 550. (8) State vs.
Mirza Beg (Kotwal) Khafi Khan, II, p. 257. (9) State vs.
Kam Bux Khafi Khan II, p. 436. (10) State vs. Qazi Mir
Storia IV, pp. 118, 119.
3 Compare (i) Ameer AH, Spirit of Islam, p. 279, (2)
J.R.A.S. 1911, p. 664.
4 Compare State vs. Shiqahdar, Manrique I. p. 424. State
vs. (Kotwal) Mirza Beg, Khafi Khan II, p. 257.
88 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
State versus the Subject
The State could be sued 1 in the same manner as
an ordinary citizen. There was no Droit Adminis-
tratif to govern suits between the subject and the
State and jurisdiction was vested in the ordinary State
Courts to try such cases. Elghinstone thinks 2 that
the courts into which the State came as the plaintiff
or the defendant were separately constituted. No
case has, however, come to my notice which suggests
any such procedure. According to Kha^Khan 3
even grave political cases were tried by the ordinary
courts and no special tribunals were created. When
a subject sought redress for an act done by an officer
under colour of his office, the fine or compensation,
if exacted, was paid either by the State or the officer
concerned, and the accused officer was also liable to a
sentence of imprisonment. In State versus Shiqah-
dar (Manrique I, p. 424) it was held that a Police Officer
was personally responsible for the wrongful arrest of a
citizen and was liable to pay him compensation. In
another case 4 due to a wrong order passed by a gover-
nor, Khan Jahan, in a murder trial, the State had to
pay damages to the heirs of the deceased. In Jahajx-
girVtime (i6oj ^ 62,8)- a Police Kotwal, in order to
prosecute an intrigue with a subordinate's wife, com-
pelled the policeman to absent himself from his house
1 Vide Cases (i) Haji Zahid and Pirji vs. State. Khafi Khan,
p. 251 II. (2) Sher Md. vs. State (Collections). (3) Claim of
the E. I. Co., for compensation (Capt. Hamilton I. p. 232).
(4) Case. Waqae Alamgir, p. 72 I.O.L.
2 (185 7) p. 420.
8 Khafi Khan II, p. 728.
4 Waqae Alamgir, Part I, p. 72, I.O.L.
CONCEPTION OF JUSTICE IN MUSLIM STATES 89
on a pretext of duty. The policeman's mothet came
to the palace and shook Jahangir's chain of justice, 1
which resulted in the Kotwal being sent to prison. 2
In another case a favourite governor of Balban killed
a man while drunk. He was tried and executed in
public. 3 Khafi^Kha^Lgives 4 details of an interesting
case when Mirza Beg, Kotwal of Lahore, went to ar-
rest a Qasi who had been accused of an offence.
The Qazi barricaded himself in his house. A fight
ensued in which the Qazi was killed. His heirs
brought a case against the Kotwal who was found
guilty of murder and an order was passed to hand him
over to the heirs of the Qazi in blood fine (Qisas).
The Kotwal died during the pendency of appeal.
In another case in the time of Auranggeb^. a wo-
man made a complaint 5 againt a Faujdar, the result of
which was that he was transferred to another locality.
Akbar was severe in punishing oppression and
encouragecT~~just complaints against the servants of
the Crown by various proclamations. 6
Shahjahanjpursued the same policy 7 and Aurang-
zeb on one occasion publicly reprimanded a subordi-
nate Qazi and dismissed him from office for showing
partiality in one of his decisions. 8 The son-in-law of
1 Ref. Rahbar e Daccan 1931. p. 19; Tuzuk e Jahangiri,
p. 3 (S.A.)
2 See Rahbar e Daccan 1931. p. 19.
8 Briggs I. p. 253 State vs. Malik Faiz.
4 P. 257!!.
5 Khafi Khan II. p. 550.
6 Compare Dow III, p. XXV.
7 Complaint against Tarbiet Khan. Dow III, p. 173.
8 Compare Dow III, pp. 334-335. Compare Aurangzeb by
Lanepoole, p . 113.
90 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Ahmad Shah, King of Gujrat, committed murder and
the Qazi's order of compensation (Qisas) was re-
vised by the King and the sentence was enhanced
to one of death. 1
'RJghts of non-Muslims
Non-Muslims were of two classes i. Zimmis
who had accepted the overlordship of the ruler and
2. Musta'mins, who were given a guarantee of se-
curity by the State, for a particular period and posses-
sed all the rights of an Alien in a modern State. 2 The
Shara' made no change 3 in the enjoyment by the non-
Muslim inhabitants of their own religion, laws and
ancient customs. The Prophet himself, by granting a
charter 4 of liberties to non-Muslims, had set the ex-
ample of recognising their personal laws, and history
affords numerous instances when the assurances given
by the Prophet were repeated by his successors, 5 and
on one occasion as Dr. Vesey-Fitzgerald relates a non-
Muslim was granted 6 a decree against the Caliph of
Baghdad by his own court of Law.
Non-believers in the Faith were, in theory, under
specific disabilities in regard to giving evidence in
court against a 'believer' but in practice these were
seldom adhered to. The Hanafi school which had
1 Mirat I. p. 49.
2 Compare Spirit of Islam by Ameer Ali, pp. 268-279.
3 Compare Ameer Ali Muh. Law II. p. 33.
4 See Kitabul Kharaj, p. 299; Futuhul Baldan, p. 65.
5 Compare (i) Maqrizi, pp. 492-499. (2) Kitabul Kharaj,
pp. 86-7. (3) Futuhul Baldan, p. 125. (4) Risael e Shibli, p. 62.
(5) Ameer Ali. Spirit of Islam, p. 274. (6) Orient under
the Caliphs by S. Khuda Bux, p. 225.
6 p. ii. Muhammadan Law. Compare Rahim, p. 383.
CONCEPTION OF JUSTICE IN MUSLIM STATES 91
obtained predominance in India was more Catholic
than others in its treatment of non-Muslims. It
was one of Abu Hanifah's maxims that judicial discre-
tion on important matters was justified on grounds
of Istislah (public policy) and thus courts could re-
frain from applying the Quranic Law to non-Muslim
in individual cases 1 vide State versus Islam Khan
and other cases given in Elliot IV, pp. 26-27. Manrique
(1629-1643) records 2 a trial where, contrary to judicial
practice, evidence of non-Muslims was accepted
against a large number of Muslim accused. The
admission of one of the accused was under the Law
not considered sufficient. In the course of the judg-
ment the court observed "The Emperor who had
conquered these lands from the Heathens, had given
his word that he and his successors would let them
live under their own laws and customs" and he, there-
fore, allowed no breach of them. 3 The non-Mus-
lims were given the right of claiming compensation
(Qisas) in murder cases 4 and in practice they were
subject to the Qanun e Shahi and the Adjective Law
only. In civil disputes between themselves their
personal law was recognised but their disputes were
usually referred to their own theologians (Pandits) 5
1 (i) Jahangir excused non-Muslims from a number of
taxes. Eraser MS. 228 Oxford. (2) Aurangzeb abolished
many taxes on them. Sarkar (1920) pp. 122-130. (3) In many
Treason cases death sentence was remitted. Tuzuk S. A.,p. 62.
2 Travels II, p. 112. The Muslims were prosecuted for
killing a peacock in a village inhabited by Hindus alone.
3 Compare Hamilton's remarks in Hidayah, p. XIV.
4 Compare (i) Kitabul Ikhtyar, Art. 544. (2) Spirit of
Islam, pp. 274-275. (3) Fiqh-e-Firoz Shahi I.O.L.
5 Compare (i) History of India by James Mill, III, p. 369.
(2) Cambridge History of India III, p. 45.
90 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Ahmad Shah, King of Gujrat, committed mutdet and
the QazFs order of compensation (Qisas) was re-
vised by the King and the sentence was enhanced
to one of death. 1
Rights of non-Muslims
Non-Muslims were of two classes i. Zimmis
who had accepted the overlordship of the ruler and
2. Musta'mins, who were given a guarantee of se-
curity by the State, for a particular period and posses-
sed all the rights of an Alien in a modern State. 2 The
Shara' made no change 3 in the enjoyment by the non-
Muslim inhabitants of their own religion, laws and
ancient customs. The Prophet himself, by granting a
charter 4 of liberties to non-Muslims, had set the ex-
ample of recognising their personal laws, and history
affords numerous instances when the assurances given
by the Prophet \vere repeated by his successors, 5 and
on one occasion as Dr. Vesey-Fitzgerald relates a non-
Muslim was granted 6 a decree against the Caliph of
Baghdad by his own court of Law.
Non-believers in the Faith were, in theory, under
specific disabilities in regard to giving evidence in
court against a 'believer' but in practice these were
seldom adhered to. The Hanafi school which had
1 Mirat I. p. 49.
2 Compare Spirit of Islam by Ameer Ali, pp. 268-279.
3 Compare Ameer Ali Muh. Law II. p. 33.
4 See Kitabul Kharaj, p. 299; Futuhul Baldan, p. 65.
5 Compare (i) Maqrizi, pp. 492-499. (2) Kitabul Kharaj,
pp. 86-7. (3) Futuhul Baldan, p. 125. (4) Risael e Shibli,p. 62.
(5) Ameer Ali. Spirit of Islam, p. 274. (6) Orient under
the Caliphs by S. Khuda Bux, p. 225.
6 p. ii. Muhammadan Law. Compare Rahim, p. 383.
CONCEPTION OF JUSTICE IN MUSLIM STATES 91
obtained predominance in India was mote Catholic
than others in its treatment of non-Muslims. It
was one of Abu Hanifah's maxims that judicial discre-
tion on important matters was justified on grounds
of Istislah (public policy) and thus courts could re-
frain from applying the Quranic Law to non-Muslim
in individual cases 1 vide State versus Islam Khan
and other cases given in Elliot IV, pp. 26-27. Manrique
(1629-1643) records 2 a trial where, contrary to judicial
practice, evidence of non-Muslims was accepted
against a large number of Muslim accused. The
admission of one of the accused was under the Law
not considered sufficient. In the course of the judg-
ment the court observed "The Emperor who had
conquered these lands from the Heathens, had given
his word that he and his successors would let them
live under their own laws and customs" and he, there-
fore, allowed no breach of them. 3 The non-Mus-
lims were given the right of claiming compensation
(Qisas) in murder cases 4 and in practice they were
subject to the Qanun e Shahi and the Adjective Law
only. In civil disputes between themselves their
personal law was recognised but their disputes were
usually referred to their own theologians (Pandits) 5
1 (i) Jahangir excused non-Muslims from a number of
taxes. Fraser MS. 228 Oxford. (2) Aurangzeb abolished
many taxes on them. Sarkar(i92o) pp. 122-130. (3) In many
Treason cases death sentence was remitted. Tuzuk S. A.,p. 62.
2 Travels II, p. 112. The Muslims were prosecuted for
killing a peacock in a village inhabited by liindus alone.
3 Compare Hamilton's remarks in Hidayah, p. XIV.
4 Compare (i) Kitabul Ikhtyar, Art. 544. (2) Spirit of
Islam, pp. 274-275. (3) Fiqh-c-Firoz Shahi I.O.L.
5 Compare (i) History of India by James Mill, III, p. 369.
(2) Cambridge History of India III, p. 45.
92 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
or Assemblies 1 (Panchayets) or Jurors, as was the
procedure adopted by the Caliphs of Baghdad. 2 Dis-
putes among powerful non-Muslim nobles were some-
times heard by the Emperor himself and non-Mus-
lims always had the option of getting their cases tried
by a Law Court assisted by a Brahman Pandit. This
is explained in the following passage from the report
of the Committee of Secrecy appointed by the House
of Commons (Vol. IV, p. 324) (1772-1773) which re-
commended the same system in Bengal:
"And your Committee finds that the Gentoo
(non-Muslim) subjects enjoyed a similar privi-
lege with respect to all cases of a religious nature
in which persons of that persuasion were parties;
for that in every such Case it was necessary that
the temporal Judge should be assisted by a Brah-
man of that caste, particularly when that cause
was of such a nature as might be attended with
the consequence of forfeiture of caste".
The Sultans preferred to follow the letter of the
Law which, while granting complete toleration
(Lakum dinakum-Quran) to non-Muslims, drew
distinctions between 'believers' and 'non-believers*.
Nevertheless, it was in their time that Hindu Kayasths
began to monopolise Secretarial and other posts in
the Government offices. During the Mughal period
(1526-1857) Hindus were appointed Governors and
Faujdars (Mirat II, p. 460) and were generally in charge
of the Revenue Department and thus became an im-
1 Kennedy, Vol. I, p. 308.
2 Ameer AH History of the Saracens, p. 422.
CONCEPTION OF JUSTICE IN MUSLIM STATES 93
portant influence in state administration, 1 (Ferishtah).
? s_ attitude towards non-Muslims may be
gathered from the following proclamation issued
by him: 2
"No man should be interfered with on account
of his religion and every one should be allowed
to change his religion if he liked. If a Hindu
woman fell in love with a Muhammadan and
changed her religion she should be taken from
him by force and be given back to her family.
People should not be molested if they wished
to build churches and prayer rooms or idol
temples or fire temples".
Apparently this attitude was adopted by His
Majesty after he had taken a Hindu Rajput princess
in marriage. Aurangzeb (1659-1707) took a more
orthodox thougK a correct view of the Law (Jamee
Umur saltanat wa maamlat mulki ra dar qalib e shari-
yah) by enforcing the Zakat tax on the Muslims 3 and
the Jazyah 4 on the rest. His predecessors had ex-
empted their subjects from both these taxes on
grounds of public policy. In general, however,
no interference was shown 5 and the non-Muslims
1 Briggs II, p. 292. MS. 370 I. F. (I.O.L.). Compare Capt.
Hamilton, II, p. 24.
2 Ain I. Blochman, p. 207. Tr.
3 See Mirat I. p. 298.
4 This is not the place to give any detail of the tax but
from an order issued by Aurangzeb and preserved in original
in the Collections and from a perusal of Mirat e Ahmadi I. p.
297 it appears that the 'Jazyah' had a sliding scale. Exemption
was given to minors, women, blind, lunatics, paupers and the
crippled and its incidence was much less than that of the Zakat.
6 Compare (i) Capt. Hamilton II, p. 24. (2) Beveridge I,
p. 141. (3) I. O. L. Records. Home Misc. No. 529, pp. 585, 612.
94 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
continued to "fill public offices and posts of trust 51
as Aurangzeb thought that matters of state were sepa-
rate from religion (Umure dunya ra az mazhab che
The position of Women
Under the Hanafi Law the position of women
was almost on a par with that of men. 2 A woman
could act as a Qazi (Kitabul Ikhtyar, p. 10). In pre-
Sultanate period they had been debarred from study-
ing the religious books or performing sacrifices to the
deities and had practically no legal status. Soon
after the establishment of the Slave dynasty, India
had the privilege of a sovereign Queen and a woman
Judge in the person of Sultan Raziah (1236-1240).
According to Elphinstone 3 she decided suits of im-
portance and evinced all the qualities of a just and
able sovereign. During her time a number of women
came to the fore-front in public life. 4 Later on as the
practice of secluding women borrowed from the
Hindus became prevalent among the Muslim nobility,
women seem to have fallen into the back-ground.
Although there were many women eminent in
literature and the arts during the Mughal period,
yet women held no judicial posts except that of Judges 5
in cases concerning Harem women, where all the pro-
ceedings were conducted by women only.
1 Waqac Alamgir, p. 59. Letter of Aurangzeb.
2 See Qaran "Hunna libasekum". Hiclayah (Hamilton)
2(1905), p. 368.
4 Tabaqat e Nasiri (Text), p. 186.
5 Roe, p. 85.
CONCEPTION OF JUSTICE IN MUSLIM STATES 95
There were no legal disabilities attached to wo-
men, except that in the reign of Akbar they were not
allowed to ride on horseback in the city. 1 Indeed in
one respect a woman was placed on the same level
as a man in a way in which she is not placed in modern
India. If found guilty of the offence of adultery, a
woman was made to suffer as severe a punishment
as was given to the male co-accused. 2 In India to-
day no woman is punishable for adultery, although
a man is.
1 Ain II 42 (Jarrett).
2 Roe, pp. 190-191, State vs. Noble woman.
SYSTEM UNDER THE SULTANS
The dynasty founded by Qutub Uddin Aibek in
1206 was extinguished in 1290. After that several
dynasties reigned in India before the Mughal advent
in different parts till 1526 and some till 1680 A.D.
They dominated the Northern, Central, Eastern and
the Southern wings of the country. The sovereigns
of Delhi possessed the largest extent of territory.
The Kings of Bengal in the East and the Sultans in
the Deccan also occupied important positions. With
the exception of the two states of Bijapur and Gol-
conda in the south where the Kings were Shiahs, the
rulers in the rest of the country were Muslims of the
Sunni persuasion, and, as I have said elsewhere, fol-
lowers of the Hanafi school. But, as the judgments
in the Baqiat and the Collections which relate to North
and South India respectively show, there was no differ-
ence between the Sunni and the Shiah systems of the
administration of justice. The points on which the
two schools differ relate to other matters, mainly the
leadership of Islam and the authority of the first
three Caliphs. Historians tell us that the judicial
institutions of the Delhi Sultans were found in other
Indian States and there seems no doubt that what the
Kings introduced in Delhi w^as copied elsewhere.
The offices of Qazi and Mufti were universal and, to
quote concrete instances, the personnel of the Courts
JUDICIAL SYSTEM UNDER THE SULTANS 97
which dealt with the following cases and their proce-
dure make it clear that there was a judicial system com-
mon to all Muslim India.
1. State versus Sidi Maula, Barni, p. 211, North
2. State versus Babaji (Collections). South
3. Widow versus King Ghyas. Stewart,
pp. 90-91. East India.
4. State versus Yusuf. Briggs IV, p. 517.
5. State versus Prince. Mirat I, p. 49. West
Even the practice started by Iltutmish, Sultan of
Delhi, of being installed by a Chief Justice was adopt-
ed. (Stewart, p. 101). Ferishtah tells us 1 that Mahmud
Shah, the Bahmani ruler of Gujrat, was a 'strict promo-
ter of the Law of Quran, permitting no neglect on the
smallest point which occasioned the Qazis (Judges)
to take cognizance of all deviations in points of morali-
ty". Yusuf Adil Shah of Bijapur was deeply read in
the Shara' law and "always warned his ministers to
act with justice and integrity', 2 while another Yusuf
Shah, King of Bengal (1474), was well informed in
Law and frequently solved questions that perplexed
the most experienced Qazis and the Muftis, 3
Since the popular conception 4 of a King's duties
1 See Briggs II, pp. 346-348.
a See Briggs III, pp. 30-31.
8 Stewart, p. 101.
4 Compare (i) Tabaqate Nasiri, MS. 1886, Br. Mus. (2)
Barni, pp. 39-43. (3) Quran, 'Lza Hakamtum Bainan Nas
Tahkumu bil Adi.'
98 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
in the Muslim world was to maintain justice and fair
play between man and man and emphasis was laid on
strict impartiality and enforcement of the Shara' Law,
the States in this particular aspect preferred to work
on a system which had already received the sanction
of the Caliphs or leaders of Islam for years.
Adherence to Shara 9 \~^^
The Sultans of Delhi were, generally speaking,
strict adherents to the Law. In many cases they had
won their thrones by a military coup. The ties of
allegiance were personal and the Sultans, whether
under the stress of circumstances or of their own free
will, endeavoured to live up to the standard demanded
of them by Islam in order not only to keep the army
pleased but by redressing wrongs to retain popular
support outside the army (Sujan Rae, p. 135). Among
them Qutub Uddin Aibek (1206-1211) left a "perma-
nent reputation" 1 and "his kingdom was governed by
the best laws''. 2 Iltutmish (1211-1236) started the
practices of hanging a chain of justice outside his palace
and of going about incognito in order to see if justice
was administered satisfactorily. 3 He issued orders
that any person who suffered a wrong should wear
coloured dress. 3 The reign of Iltutmish was noted
for jurists well versed in the law and practice of Shara*
(Barni,p. in). His successors Raziah, 4 Nasir Uddin
1 Elphinstone (1905), p. 363.
2 BriggsI,p. 199.
3 Ibn Batuta, p. 112 (Lee). Compare Elliot III, p. 591.
* Tabaqat e Nasiri, p. 185. MS. 1886. Br. Mus. Compare
Elphinstone (1905), p. 3 68 - Elliot n > P- 33-
JUDICIAL SYSTEM UNDER THE SULTANS 99
Mahmud 1 (1246-1266), Balban 2 (1266-1286), Tughlaq
Shah 3 (1320-1325), Fiioz Tughlaq 4 (1351-1388), Bahlol
Lodi 5 (1451-1489) and Sikander Lodi 6 (1489-1517)
maintained a "high level" of judicial administration,
and as a result of their close observance of the rules
of Shara', considered the dispensation of justice a
religious duty Lazim e din e Haq dad dehi wa insaf
sitani ast. 7
Ala Uddin Khilji's interview 8 with his Chief
Justice in which he declared that government was
meant for Kings and religion 9 for the Qazis and Muf-
tis, and Muhammad Tughlaq's address 10 to one of his
Judges suggest an attitude of attempting to introduce
new elements into the law on the part of some rulers,
but they did not violate any of its essential require-
ments and probably public opinion did not assist
them in establishing traditions repugnant to the basic
principles of the Shara'. 11 A little later in the time
of Firoz Tughlaq (1351-1388) we find a code being
1 Ibn Batuta, p. 114 (Lee).
2 Barni, pp. 39-46. Compare Briggs I, pp. 250-266.
3 Barni, p. 441.
4 Barni, pp. 575-578. Briggs I, p. 461.
5 Kennedy, I, p. 103.
6 Kennedy, I, p. 108. Badaoni I, p. 313.
7 Compare Tarikh e Sher Shahi I, K. C. C, p. 79. "No
amount of worship can equal acts of Justice". Sher Shah.
8 Barni, pp. 289-290. Nuzhatil Khwatir, pp. 166-169, Hyder-
9 Mulkdari wa Jahanbani ilaheda karest wa ahkame
Shariyat ilaheda. Barni, p. 289.
10 Badaoni, I, p. 239. Elliot III, p. 263. Compare Barni,
11 The attempt on the part of King Qutub Uddin, 131 5-48,
to appoint an incompetent man as Chief Justice was a dismal
failure. Barni, p. 406.
TOO ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
prepared in order to acquaint people with the correct
Jaw, "so that there should be no violation of it".
During the Sultanate 1 'Muftis' and Mujtahids
learned men in Law of acknowledged repute and
learning were employed in Courts to keep the Rulers
informed of the correct rules of conduct. According
to Barni 1 the salvation of Kings lay in their strict
observance of the Shara'. "All breaches of the Holy
Law were forbidden". 2 Paintings and pictures
which savoured of idolatry could not be brought with-
in the precincts of the Royal Court. 3 Zia Uddin Barni
in describing the prevailing sense in the community
in the reign of Ala Uddin Khilji says: 4 "During the
last ten years of his reign, the heads of Muslims in
general were inclined to rectitude, truth, honesty,
justice and temperance" (p. 341).
Influence of Abbaside Institutions
The Sultans, in fact, had little respite from the
tasks of suppressing rebellions and extending con-
quests in which they could evolve, like the Mughals,
a definite administrative programme. It may have
been for this reason that they found it convenient or
perhaps it was due to their reverence for the tenets
of Islam that they elected to recognise the Caliph
of Islam in Egypt or Turkey as their spiritual over-
1 Compare (i) Barni Address of Iltutmish, pp. 39-42,
also p. 352.
2 Compare Elliot III, p. 363; Barni, pp. 41-45.
8 Compare Elliot III, p. 363.
4 Elliot III, p. 207.
JUDICIAL SYSTEM UNDER THE SULTANS IOI
lord 1 and to adopt judicial institutions such as Diwan e
Mazalim, Ihtisab, and grades of courts that existed
under the Abbaside Caliphs. The ex-Minister of
Istanbul, Azam Tara, who had served the Turkish
Sultans was invited to become Wazir at Delhi 2 and the
designation and the functions of the Law Courts also
were modelled on Abbaside lines. Firoz Tughlaq
(1351-1388) alone of the long line of the Sultans tackled
judicial reforms seriously. This fact has induced a certain
class of historians to say that the Muslim Sovereigns
of Delhi governed India with "ready made' 3 institu-
tions. But it is incorrect to suggest that the Sultans
of Delhi applied the Shara' rigidly in India to Mus-
lims and Hindus alike. Indeed we are told by the
Shara* itself that the whole body of Islamic Law is
not applicable to non-Muslims. "The non-Muslim
subjects, that is the Zimmis, are not subject to the
Laws of Islam; their affairs should be regulated accord-
ing to the principle of their own religion". This is
stated in the Fatawa e Alamgiri. The Islamic Civil
Code, which governed questions of inheritance, mar-
riage and other matters of a similar nature, was appli-
cable only to Muslims. The Hindus in this particular
had their own special La\v\ Certainly the Islamic
Criminal Code, that is the Law which guaranteed
security of life and property, was applied equally to
Muslims and Hindus everywhere. But the Hindu vil-
lages in general enjoyed true self-government in the
1 Compare Briggs I, p. 210; Elphinstone (1905) p. 367.
Barni, p. 497. Elliot III, pp. 249-250. Badaoni I, p. 232.
Shams Siraj Afif, 273-274.
2 Barni, p. 579.
3 Sarkar Mughal Administration (1935), p. 6.
102 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
administration of local affairs. The Sultans only inter-
fered with previous judicial arrangements in the towns
and subdivisions of districts, that is to say, in impor-
tant administrative units.
The Sultan was elected by the leading men at the
Capital, as was the case when the early Caliphs of Islam
were selected. Some powerful rulers were able to
get their sons nominated as their successors.
The installation 1 of a Sultan was usually done in
the presence of the Chief Justice who was known
as Qaziul Quzat and other officers. The Sultan was
assisted by a Council of Ministers responsible to him
for such departments as Finance, Army, Accounts,
General Administration, Ecclesiastical, Law and Jus-
tice. The Chief Ministers (Wazirs) of the Sultans
were in some cases invested with judicial powers
in addition to their executive duties, vide State versus
Sh.Haidari,IbnBatuta (Lee) page 146 and State versus
Khwajah Ahmad, Shams Siraj Afif, page 508.
The Empire was divided into Provinces (Subahs).
The Provinces in turn were composed of Districts
(Sarkars) which were subdivided into Parganahs or
groups of villages.
The Sultan was represented in each Province by a
Governor (Nazim) who had under him a number of
"departmental heads". The Revenue administration,
for example, was in the hands of the Diwan or the
Provincial Finance Minister whose subordinates in
1 Elliot III, p. 591; Stewart, p. 101. Ibn Batuta, Travels.
JUDICIAL SYSTEM UNDER THE SULTANS 103
the Sarkars were called Amils or Collectors of
The maintenance of Law and Order was in the
personal charge of the Governor. For this purpose
his principal agents were the Faujdars of whom there
was one in charge of every district as principal execu-
tive officer and commander of the local troops. The
Police organisation in the districts was under the
Faujdar although there was an immediate command-
ing officer, the Kotwal, in the cities and the "Shiqah-
dar" in the Parganahs. (Barni).
The Governor as representative of the sovereign
was also the Chief Judicial officer in the Province but
there was a regular department of Justice Mahekmae
Qaza 1 working in each province under the Chief
Provincial Qazi (Qazi-e-Subah) and each district and
town had a Qazi, as was the practice among the
Abbaside Caliphs. 2
The Ecclesiastical department or Mahekmae
Shariyah had its separate Chief in the Sadre Jahan at
the Imperial Capital. Like the Chief Ecclesiastical
officers of the Anglo-Saxon period he had an impor-
tant share in the administration of justice. He was,
in the absence 3 of the Sultan, the presiding Judge in
the Courts of Criminal (Mazalim) 4 and Civil Appeal
(Risalat). 5 The inferior Qazis were selected from
1 Badaoni, I, p. 318, (Ranking).
2 Compare Ameer All: History of Saracens, p. 422; Is-
lamic Culture, 1927, p. 336; Holden: Mogul Emperors, p. 38.
3 According to Badaoni Muhammad Tughlaq himself
4 Tabaqat e Nasiri: Islamic Culture, 1927, p. 333.
5 Barni, pp. 153, 374, Br. Mus. MS. Or. 1887.
104 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
among the "graduates in Law and Divinity" (El-
phinstone 1857, P- 4 21 )-
I The Department of Justice Mahekmae Qaza.
1 . Diwan e Mazalim
(MS. Or. 1886)
2. Diwan e Risalat
(Barni, p. 374)
3. King's Court
4. Chief Justice's
j. Sadre Jahan's
6. Diwan e Syasat
(Barni, p. 497)
Highest Court Sadre Jahan
of Civil Appeal
All kinds of Sultan
All kinds of Qazi ul
Ecclesiastical Sadre Jahan
Temporary for Muhammad
sanctioning cri- Tughlaq
i. The Sultan
The Sultan presided nominally over Courts i and
2 but seldom sat in them. In the King's Court he
could try cases singly both as an original and as an
Appellate Judge. His Court was the highest Court
1 Compare J.R.A.S. 1911, p. 655.
JUDICIAL SYSTEM UNDER THE SULTANS 105
of appeal in the realm. 1 Sitting singly he was assis-
ted by two Muftis of acknowledged legal reputation
in applying the Law.
2 . Sadre Jahan or Sadre Kul
The Chief Justice or the Qaziul Quzat was the
titular head of the Empire judiciary from 1206-1248.
In about 1248 A.D. Sultan Nasir Uddin created the
superior post of Sadre Jahan and appointed Qazi
Minhaj Siraj Chief Justice to it. He was also appoint-
ed President of the Diwan e Mazalim (Court of Cri-
minal Appeal) of .the Empire which was also estab-
lished by Sultan Nasir Uddin. Since then the Sadre
Jahan became the de jure head of the Empire judiciary. 2
He was also made Chief of the "Ecclesiastical Depart-
ment" which had remained under the Chief Justice
till 1248 A.D. On the judicial side his duties may be
compared with those of the Lord Chancellor of Eng-
land. He sat on the King's Bench occasionally,
tried original cases 3 and recommended candidates for
appointment as Qasis. His own (Sadr) Department
issued letters of appointment to those who were
selected. According to the Institutes 4 of Taimur the
'Sadr' in Muslim Turkistan was an officer of "illus-
trious dignity appointed to watch over the conduct
of the faithful and had no judicial duties". When
Qazi Minhaj Siraj was elevated to this office in 1248
the Chief Justice was Qazi Zia Uddin who did most
1 Compare Beveridge I, p. 102.
2 Barni, p. 580.
3 Badaoni I, p. 239. Muhammad Tughlaq vs. Jami.
4 Compare Holden: Mogul Emperors, p. 38.
106 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of the judicial work. 1 The intention seems to have
been to keep these two offices separate 2 but Ala Uddin
amalgamated them into one in the person of Qazi
Sadr Uddin Arif. 3 Perhaps as Barni thinks (pages
3 5 1-3 5 2) he was too particular in his selections. Sultan
Firoz Tughlaq again separated them 4 for some time.
The office was for life.
The main duties of a Sadre Jahan as given in the
letter of appointment copied in Tabaqate Nasiri
(page 175) were:
1. Qaza Decision of Cases.
2. Khitabat Grant of titles.
3. Imamat Leadership in Prayers.
4. Ihtisab e Kulle Umur Sharai Censorship of
morals and supervision over affairs connected with
According to Barni (page 580) the Sadre Jahan
exercised supervision over Educational establishments
and Law officers.
The Sadr department also had charge of the grant
of stipends to learned men and of land to the poor.
All claims connected with these grants came up for
hearing before the Sadr. Badaoni speaks of such cases
as civil suits. The Sadre Jahan was represented in
the Provinces by the Sadre Subah and in districts by
The Sadre Jahan and his department had no direct
concern with the Diwan-e-Syasat, the Court of Prose-
*Br. Mus. Or. 1887.
2 Compare Barni, p. 428; Elliot II, p. 327.
3 Barni, p. 247; Compare Elliot II, p. 261 also Barni, p. 352.
4 Barni, pp. 579-580.
JUDICIAL SYSTEM UNDER THE SULTANS 1 07
cutions, temporarily created by Muhammad Tughlaq
and abolished by his successor.
Chief Justice x ^,.^
Most of the actual duties of the head of the Judi-
ciary were carried out by the Chief Justice Aqzal
Quzat 1 or Qazi ul Quzat. 2
According to Ibn Batuta sometimes one or two
eminent Qazis were appointed to his Court as Puisne
Judges. The Sadre Jahan had other duties to perform
and was not always present in Court. The Chief
Justice and his Puisne Judges accordingly disposed 3
of all the appeals that came up before the Diwan e
Mazalim or the Diwan e Risalat from the Courts of
the Chief Provincial Qazis or the Governors on the
appellate side and also tried all cases that were filed
before these Courts on the original side. A Qaziul
Quzat was quite distinct from the Shaikhul Islam
who had no office (Barni, pp. 341-343).
The appointment of the Chief Justice was usually
made by the Sultan from "among the most virtuous
(muttaqi tareen) of the learned men in his Kingdom"
(allamae rozgar. Barni, p. 580). Ibn Batuta gives
reference to Qazis and their disciples in his Travels
(pp. 56, 71) and this suggests that the Qazis were
occasionally teachers of law 4 who had the "ability
1 Tajul Maasir MS. K. C. L, C.
2 Ibn Batuta. Elliot III. p. 591.
3 Compare the duties of the Lord Chief Justice of Eng-
land in relation to the Lord Chancellor.
4 Compare (i) Selection of Qazi Minhaj as Chief Justice
(Or. 1887. Br. Mus.). (2) Barni, pp. 43, 353.
108 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
to give correct judgment" (mustahiq jawab dadane
fatwa). Sometimes the selection was unpopular
and public resentment was shown as in the
case of Qazi Hamid Uddin Multani by Ala
Uddin Khilji 1 and of Qazi Zia Uddin by Qutub
Uddin. 2 The King's letter of appointment was
like the modern "Letters Patent" of the British Sove-
reign elaborately written out. The incumbent was
given a special audience 3 to receive it. Muhammad
Tughlaq in appointing Ibn Batuta as Judge of the
Chief Justice's Bench said:"Do not suppose that your
office of Judge of Delhi will cost you little trouble.
On the contrary it requires the greatest attention".
(Travels (Lee) p. 148.) The incumbent of the office
of Qaziul Quzat held it for life and there was no age
A Chief Justice could be dismissed or degraded
as a Qazi of lower rank by the Sultan at his pleasure 4
vide case of Qazi Jalal Uddin, Badaoni (Ranking)
I, p. 234. Tabaqat e Nasiri, p. 194.
Qazi Imad Uddin Shakurkhani's character was
doubted and he was removed in 1248 A.D. (Elliot
II, p. 349). King Moiz Uddin Bahram executed Qazi
Shams Uddin for treason without trial, and paid the
penalty for so doing by losing his own life in a rebel-
lion which the execution provoked. (Briggs I, p.
1 Barni, p. 352.
2 Barni, pp. 406, 408.
8 Compare J. R. A. S. 1910, p. 767.
4 Compare Syasat Namah, p. 77.
JUDICIAL SYSTEM UNDER THE SULTANS 109
227). Qazi Shams Uddin Meht was removed as the
result of a successful appeal by the convicted person
(Elliot II, p. 340). The removal of a Chief Justice
from office, if not due to his partiality, did not dis-
qualify him for re-appointment (Br. Mus. Or. 1887;
Tabaqat e Nasiri Or. 1886).
Other Functions \^^
According to Ibn Batuta a Chief Justice under
the Sultanate was required to administer 1 the oath of
office to the Sultan and also to be present at his instal-
lation. 2 He was himself installed by the Sultan and
had to swear an oath of allegiance to him. 3 The
Chief Justice and other Judges at the Capital occasion-
ally entertained the King. 4 Ibn Batuta complains that
his huge salary was sometimes consumed in this man-
ner. The Chief Justice was consulted when rules
and regulations for the Empire were framed (Abbas
Khan I, MS. p. 83, K. C. C.). He was sometimes
employed on diplomatic missions 5 (Tabaqat e Nasiri,
p. 223). Some of the Chief Justices were also given
charge of educational institutions.
His Influence '^-/ x
The Chief Justice and the Puisne Judges of
the Supreme Court were men of ability (Afazil e
1 Ibn Batuta vide Elliot III, p. 591.
2 Stewart, p. 101.
3 Barni, pp. 246-247. Elliot III, p. 591.
4 The Chief Justice and the Judges of the Allahabad
High Court, U. P., India even today entertain the King's re-
presentative the Governor when he visits Allahabad.
6 Compare Br. Mus. MS. Or. 1887; Tarikh e Sher Shahi,
Vol. I, p. 83, K. C. C.
110 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Rozgar) 1 and were held in high esteem. Speaking
of Qazi Sadr Uddin Arif who was both Chief Justice
and Sadre Jahan 2 Barni writes, "His information was
so wide and his judgment of men so remarkable that
no one dared to put false pretence in his Court",
Several of the Chief Justices of the Sultanate
period were noted for their independence of charac-
ter. In State versus Sidi Maula and others (Beveridge
I, page 75; Badaoni, p. 171; Barni, pp. 210-211) Sultan
Jalal Uddin wanted a sentence of death passed on
Qazi Jalal Uddin who was accused of sedition but the
Chief Justice refused even to convict him. Muham-
mad Tughlaq on one occasion withdrew a suit of his
own in the Chief Justice's Court when he found that
the Court refused to favour him (Badaoni I, page
239). Such incidents enhanced the prestige of the
Chief Justice and his colleagues.
On the other hand, incompetent Qazis were
ridiculed 3 and even murdered, 4 perhaps on the prin-
ciple that the whole community was responsible for
the proper administration of justice. 6 Yet cases of
incompetence were few and the Chief Qazis, as
Elphinstone observes 6 were held in great respect and
exercised considerable influence. 7 In State versus
1 One of the most learned men of the times Akhbarul
Akhyar MS. 18 K. C. C Br. Mus. Or. 1887.
2 See p. 60.
3 Barni, p. 352.
4 Barni, p. 406.
6 Compare Minhaj, p. 500.
6 (1857) p. 297.
7 Compare Tabaqat e Nasiri, p. 223.
JUDICIAL SYSTEM UNDER THE SULTANS III
Qazi Jalal Kashani "a Qazi of some repute" was prose-
cuted for treason (Elliot III, pages 144-145) but no
one would give evidence against him and he was
acquitted. On another occasion Qasi Shams Ud-
din Mehr sentenced a Darwesh (Holy mendicant) to
imprisonment, but he was acquitted in appeal and the
King then forced the Qazi to resign. 1 The result was
a popular demonstration against the Royal Order.
At another time when Balban had ordered the
execution of a number of rebels, only the Judges of
Delhi could venture to approach him for a reprieve 2
and they succeeded.
In the order of precedence the Chief Justice held
the first place 3 next to the Sovereign and the Sadre
Jahan (if any). A passage in the Syasat Namah 4
suggests that the Qazis ought to be paid generous
salaries. In the pre-Sultanate period Judges had
received 5 a portion of the fees deposited by the liti-
gants in Court. The practice of paying Judges in
Muslim countries had been started by Zaid Ibn
Thabit 6 in the time of the Caliph Omar and seems to
have been adopted by the Sultans. There is no defi-
nite information available about exact figures. Ibn
Batuta tells us that his salary as a Judge of the Chief
1 Elliot II, p. 340.
2 Elphinstonc, p. 373 (1905).
8 Tabaqat c Nasiri, p. 177. Compare Smith History
of India, p. 245.
4 p. 40.
5 See Chapter I.
e Compare Ameer AH. History of the Saracens, p. 62.
112 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Justice's Bench was 12,000 Dinars a year 1 which would
be equivalent to 12,000 a year today. A 'Jagir' 2
was also provided for him which yielded an equal
amount and he w r as allotted a state residence free of
charge. Presumably the Chief Justice received consi-
derably more. I give below extracts from a MS.,
containing the life history of Qazi Minhaj us Siraj
Jurjani, 3 a Chief Justice in the i3th century, which
illustrate the points discussed above.
Birth 58 A.H.
Parents came of a family of learned men. On
the father's side he was related to Sultan Ibrahim ibn
Masud of Ghazna. Parents died when he was a
child. He was brought up by a Ghor Queen Mahe
Malik who died in 607 A.H. At the age of 1 8 in 607
A.H. i.e.., 1208 A.D. he was sent by the King of Ghor
as a political attache, to the Court of Malik Nasir
Uddin Abu Bakr and then stayed in Khorasan till
624 A.H. (i.e., 1225 A.D.).
Returned to India in 625 A.H. i.e., 1226 A.D.
and joined the army of Iltutmish Sultan of Delhi
1212-1236. Interviewed Iltutmish 16 Safar 625 A.H.
i.e., 1226 A.D. Appointed Khatib 629 A.H. i.e.,
1230 A.D. and then Qazi at Gwalior holding charge 4
1. Qaza Trial of cases.
2. Khitabut Preaching.
1 Travels (Lee) p. 148.
3 See Br. Mus. Or. 1887.
4 Compare duties of Sadre Jahan, p. 60.
JUDICIAL SYSTEM UNDER THE SULTANS 1 13
3. Imamat Leadership in prayers.
4. Ihtisab Censorship of morals.
Remained in this post for six years.
635 A.H. i.e., 1236 A.D.
Iltutmish died. Minhaj came to Delhi to the
Court of his successor Sultan Raziah who appointed
him Principal of one of the State Colleges, Madarsae
Nasiryah in addition to his other duties.
639 A.H. i.e., 1239-1240 A.D.
Raziah died. As Qa2i of an important province
(Gwalior) he approved of the succession of Behram
Shah to the throne. The latter appointed him the
Chief Preacher of the State and later created him Chief
Justice of the Empire. At this time the Chief Justice
was also the Qazi of the Capital.
An attempt was made by the people to assassinate
Behram and the Qazi. The former was killed, but the
latter escaped and resigned his office. 1241 A.D.
Joined the Court of Tugha Khan, Governor of
Oudh, 641-643 A.H. i.e., 1243-1245 A.D. and held
Returned to Delhi in 643 A.H. i.e., 1245 A.D.
and was re -appointed Qazi of Gwalior and Principal
of the Madarsae Nasiryah and effected a reconciliation
between Sultan Mahmud and Balban. Honoured
by Mahmud in 644 A. H. i.e., 1246 A.D. and started
writing his "Tabaqat e Nasiri".
Appointed Chief Justice again in 649 A.H. i.e.,
114 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
1151 A.D. by Mahmud but removed from office in
651 A.H. i.e., 1253 A.D. mainly, it is said, owing to an
intrigue on the part of Imad Uddin Raihan, a power-
Became a recluse. (Khana Nashin).
Nasir Uddin created him Sadre Jahan on Rabi
I 20. 652-653 A.H. i.e., 1254-1255 A.D. and he was
for the third time appointed Chief Justice at the end
of 653 A.H. i.e. 1255 A.D.
Died about 698 A.H. i.e., 1300 A.D.
The Chief Justices of the Sultans of Delhi, in
chronological order, were:
Qazi Wajih Uddin Al Kashani,
Qazi Nasir Uddin.
Qazi Ikhtyar Uddin.
Qazi Malik Zia Uddin Muhammad Junaidi.
Qazi Jalal Uddin Kashani (First appointment).
Qazi Shams Uddin Mehr.
Qazi Minhajus Siraj (First appointment).
Qazi Imad Uddin Shakurkhani.
Qazi Jalal Uddin Kashani-(Second appointment).
Qazi Minhajus Siraj (Second appointment).
Qazi Shams Uddin Bahraichi.
Qazi Minhaj us Siraj (Third appointment).
Qazi Malik Nizam Uddin.
Qazi Mo ghees Uddin of Bayana.
Qazi Hamid Uddin Multani.
Qazi Zia Uddin "Qazi Khan'.
Qazi Sadr Uddin.
Qazi Kamal Uddin.
Qazi Jalal Uddin Karmini.
JUDICIAL SYSTEM UNDER THE SULTANS
Qazi Zia Uddin.
Qasi Sama Uddin.
Qazi Mian Bhua.
attached to the Chief Justice's Court
i.^ Mufti. (Barni, page 441)
He was a lawyer attached to the Court in order
to expound the Law. His position w r as like that of a
'legal' assessor. The Muftis of the Chief Justice's
Court were lawyers of eminence. They were in theory
appointed by the Sultan, but candidates for this office
were selected by the Chief Justice.
The Judge had to accept the view of the Law
given by him and in case of difference, reference was
made to the higher Court, that is of the King.
In civil cases, arising out of the Personal Law of
the non-Muslims which came before the Court, the
Law was explained by a Brahman Lawyer, usually
known as a Pandit. The status of a Pandit was the
same as that of a Mufti. The practice of employing
Pandits was a modification of the system of the Abbasi-
de Caliphs who left the decision of cases relating to
civil rights among non-Muslims to their own com-
munal heads. 1
3 . Mohtasib. (Barni, page 44 1 ) .
The censor of Morals or the Mohtasib was in
charge of prosecutions under the Canon Law on the
1 Compare Ameer All. Islamic Culture, 1927, p. 333.
Il6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
original side. In appeals he answered for the pro-
N The Caliphs of Baghdad had a department of
AJ Hisbah' which watched over the private moral
conduct of the citizens lest it might affect adversely
the administration of Laws.
The appointment seems to have been made first
in the reign of Iltutmish (1211-1236).
4. Dadbak. (Barni, page 441).
See under Provinces.
2. Qa^i-e-Urdu (Badaoni I, page 170).
Was the Qazi in the Cantonment area.
II. Provinces (Subah) (Iqta)
1. Adalat Nazim Subah. Governor's Court
Original and Appellate.
2. Adalat Qazi-e-Subah (Chief Provincial Qazi)
C^aon Law and Common Law Court. Original
^--'3- Governor's Bench Highest Appellate Court
in the Province. Original Jurisdiction.
4. Diwan-e-Subah Revenue Court. Original
5. Sadre Subah Ecclesiastical Court. Special
Benches could be constituted by the Sultan to try
JUDICIAL SYSTEM UNDER THE SULTANS II J
i. The Governor (Na%tm-e-Subaft).
He represented the Sultan in the Provinces and
had, like him, original and appellate jurisdiction.
In original cases he usually sat as a single Judge.
Appeals from his judgments could be filed in the
central appellate courts.
When he heard appeals he sat on a Bench of
which one member was certainly the Qazi-e-Subah.
Whether there were others is not quite clear. The
appeals came from all the courts in the Province and
they could also be filed from the Court of the Qazi-e-
Subah. Presumably the latter did not sit to hear
his own appeals as the Law prohibited this. 1
Appeals against the decision of this Bench could
be taken to the courts at the centre, perhaps on the
principle that the Sultan's Court possessed inherent
jurisdiction to hear them. 2
Land Revenue cases were heard by the Governor
or by his Finance Minister, the Diwan. The Qazis
had no jurisdiction to hear them. This distinction
between Revenue and Civil Courts is still preserved
in modern India, and certain cases involving ques-
tions of Land Revenue Law are even today outside
the jurisdiction of the ordinary Civil Courts, It is
unlikely that his other duties permitted the Gover-
nor to do much judicial work himself, and the main
1 Hidayah Book XX, p. 338, as he may be biassed.
2 Vide appeals heard by Sikander Lodi. Beveridge I,
p. 102. Compare J.R.A.S. 1911, p. 655. Practice of the Ab-
bas ide Caliphs.
Il8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
burden seems to have fallen on the Qazi-e-Subah
judging from such records as have survived.
2 .^ ')a%j-e-Subab
The Chief Provincial Qazi was known as the
Qazi-e-Subah. According to Baihaqi 1 he was some-
times designated Qazi-ul-Quzat, though this seems
to have been a courtesy title reserved, according to
other historians, for the Chief Justice of the Empire.
The Qazi-e-Subah had powder to try civil and criminal
cases of any description and to hear appeals from
the Courts of District Qazis. Revenue cases, as
already stated, were excluded from his jurisdiction
which was specified in his letter of appointment.
The Court of the Qazi-e-Subah represented the
present chartered High Courts of the Presidency
towns in British India, except that it was a Court
of one Judge only. The Qazi-e-Subah held rank
in the Province next to the Nazim and was entirely
independent of him except that appeals against his
decisions could be preferred to the Nazim, who
represented the Sultan in the Provinces. He was
President of the Tribunals which were constituted
to hear important cases involving offences against
He was also expected to supervise the adminis-
tration of justice within his Province and to see that
the Qazis in the outlying places carried out their
duties in a proper manner. 2
l p. 246.
2 Compare Sultan Mahmud of Ghazna by Dr. Nazim,
JUDICIAL SYSTEM UNDER THE SULTANS
He was selected by the Chief Justice of the
Empire or by the Sadre Jahan and appointed by the
King. Reputation for learning and scholarship and
a high character (Qa^a ilm-e-mujarrad nest} were
considered necessary qualifications. 1 He could be
transferred to other post, removed or degraded by
the Sultan. 2 Sher Shah appointed as Governor of
Bengal Qazi Fazilat Qazi-e-Subah of the Province
of Bihar. 3
His other duties included those of paying an
official call on the Governor when appointed, and
recommending candidates for appointment as Dis-
trict Qazis, as was the practice in the Abbaside Em-
A Qazi-e-Subah could be promoted as Qaziul
Quzat. (Tabaqat e Nasiri. Raverty, pp. 686, 694).
'""" (i) Mufti, (2) Mohtasib, (3) Pandit. (4) Dadbak.
(Tabaqat e Nasiri. Raverty, pp, 788-790).
One of the officers attached to the Court of the
Qazi-e-Subah was the Dadbak. 5 According to Bar-
ni, he was an administrative officer whose duty was
to see that "all persons high or low came to Court
when summoned" and probably to regulate filing
of plaints and appeals (Raverty T. N. p. 790). He
1 Tazkiratul Ulema, p. 15. Badaoni I, p. 324.
2 Case of (i) Qazi Taj Uddin Barni, p. 348. (2) Qazi Jalal-
Kashani. Elliot III, p. 145.
8 Badaoni I, p. 365.
4 Compare History of Saracens. Ameer Ali, p. 188.
5 Compare Elliot III, p, 126; Barni, p. 441.
1 20 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
was thus a Registrar or Clerk of the Court. Ibn
Batuta thinks that this post was one of honour. The
author of Tabaqat e Nasiri also speaks of the Chief
Dadbak attached to the Chief Justice's court in high
terms (Raverty, p. 790).
3 . Diwan-e-Subah
A Diwan was the Revenue and Finance Minister
of the Province. He was the final authority in the
Province in Land Revenue cases. Appeals from his
orders lay to the Governor or the Sultan.
He may be called the chief Ecclesiastical officer
in the Province. Strictly speaking, he was not a
judicial officer, although in Canon Law cases he
sat on a Bench with the Qazi-e-Subah. He repre-
sented the Sadre Jahan in the Province in matters
connected with the grant of stipends, land etc. for
education and religious purposes, and decided claims
in respect of these items which were excluded from
the jurisdiction of the Qazis. 1
I//. District Headquarters (Sarkars)
i. Qazi .. .. (i) All civil and criminal
(2) Appeals from (a) Parga-
nah Qazis. () Kotwals.
(<r) Village Panchayets.
1 Compare Elphinstone (1857), p. 421.
JUDICIAL SYSTEM UNDER THE SULTANS 121
2. Dadbaks of Mir Civil cases of a petty na-
Adls (under ture.
Lodis only) Appeals lay to Qazi-e-
3. Faujdars . . Petty criminal cases. (Bar-
ni, p. 479). Appeal lay
4. Sadr . . . . Grant of Land and Re-
gistration cases. Ap-
--" peals to Sadre Subah.
5. Amils . . Land Revenue Cases.
(Barni, pp. 450-500).
Appeals to Diwan-e-Su-
6. Kotwals . . Petty Criminal Cases.
~ ' No record of Appeal exists.
The District Qazi was appointed on the recom-
tfiendation of the Qa2i-e-Subah or independently
by the Sadre Jahan, The person selected was usually
one possessing a good knowledge of Law. 1
He tried civil and criminal cases of every class
and had jurisdiction to decide all questions of fact
and law. 2 On questions of Law he w r as required
to obtain the opinion of the Mufti. In criminal
cases he could pass a sentence of death. 3 Civil cases
1 Elphinstone, p. 421 (1857).
2 Compare Syasat Namah, p. 40.
8 Compare Ibn Batuta, p. 146.
122 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
between the State and a subject could be filed in
his Court. 1
Among his duties the following are mentioned
specifically. (Hidayah. Book XI. Fiqh-e-Firoz Shahi.
1. To register marriages.
2. To try Waqf and Trust Cases.
3. To try cases relating to
(1) Intestate property.
(3) Missing persons.
He was also required to supervise Jails.
The district Qazi's position was one of indepen-
dent trust and responsibility. His seal or signature
on documents was considered a sufficient guarantee
of genuineness. 2 In one case the Kings of Delhi
and Jaunpur agreed to consider each other's obliga-
tions in regard to the return of War prisoners, ful-
filled if the Qazi of the district concerned certified
that it was done. (Stewart, page 98).
Among the officers attached to the District
Qazi's Court were the Mufti, the Pandit, the Moh-
tasib and the Dadbak.
The following minor officials 3 worked in a Dis-
trict Qazi's Court: -
i. Katib Writer of evidence and statements.
1 Ameer All, Islamic Culture, 1927, p. 335.
2 Stewart, p. 98.
8 i, 2, 4, 5 were employed by the Abbasides as well J.R.A.S.,
1911, p. 637.
JUDICIAL SYSTEM UNDER THE SULTANS 123
2. Faqih Writer of Fatwas or Precedents.
%; Nazir In charge of the Establishment.
4. Subordinate Clerks.
Newswriters or Akhbar Nawis were attached
to all the district Courts from the time of Ala Uddin
Khilji to record the daily proceedings of the Courts
for the inspection of superior officers (Barni, page
He was appointed by the Governor. He had
jurisdiction to try what are called in modern India
"Security" cases, i.e. the binding over of potential
or suspected criminals. His duties w r ere mainly
executive and he commanded the local troops 1
as the words Fauj and dar indicate. (Barni, page 479).
He had power to try petty criminal cases such
as those punishable under the present day Municipal
IV. Parganah Headquarters
i. Qazi-e-Parganah (i) All civil and criminal
(2) Canon Law cases if
z., Kotwal .. Petty criminal cases.
1 Stewart, p. 382.
124 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
During the Abbaside rule at Baghdad, every
city and large town had a Qazi. 1 The Ghaznavides
had adopted this arrangement, 2 and the Sultans fol-
lowed the same practice. The Qasi-e-Parganah had
all the powers of a District Qazi except to hear
He had also a staff attached to his Court similar
to that of the District Qazi.
There was no Faujdar in towns. The Kotwal
was the principal Executive officer and he also tried
minor criminal cases.
3 . Shiqahdar. (Barm, page 479)
In some towns there was neither Faujdar nor
Kotwal, but merely a Shiqahdar who had petty
magisterial powers. He was mainly a Revenue
officer (Barni, pp. 498-499), but was also required to
assist in the prevention of crime. 3
V. Villages. (Dehat)
Court The Panchajet.
The Parganahs were subdivided into groups of
villages. For each group there was a local tribunal
usually called the Panchayet or body of five leading
1 Ameer All. Islamic Culture, 1927, p. 333.
2 Mahmud of Ghazna, pp. 147-149.
8 Compare some aspects of Muslim Administration by
Tripathi, p. 307.
JUDICIAL SYSTEM UNDER THE SULTANS 125
men. The Sarpanch or chairman was appointed
by the Nazim or the Faujdar. The Panchayet heard
civil and criminal cases of a purely local character,
and was held responsible for Law and Order (Briggs
III, page 420).
COURT. Qazi-e-Urdu or Qazi e Askar.
Every cantonment or military area had a Qazi
of its own who w^as known as the Qazi-e-Askar.
His jurisdiction was limited by the boundaries within
which the troops were stationed. His powers were
the same as those of a Parganah Qazi.
In the constitution and jurisdiction of the Sul-
tanate Courts, points that may be emphasised are
1. All Courts possessed original jurisdiction.
2. In practice Courts which also had appellate
powers did not as a rule try cases in the first instance.
As Courts of Appeal they had inherent powders to
interfere in the proceedings of Lower Courts at any
In State versus Khwajah Ahmad and others, 1
a murder case, the Appellate Court (Sultan) directed
the Lower Court not to accept c blood fine'.
3. A litigant could take his case to the Qazi-e-
Parganah or to the District Qa2i or to the Qazi-e-
Subah or to the Governor or to the Chief Justice
or even to the Sultan in the first instance.
1 Shams Siraj Afif, p. 508. Compare J.R.A.S., 1911, pp.
126 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
4. The Qazi's powers in respect of the value
of suits and of the character of alleged criminal
offences were unlimited and from this point of view
all the Qazis were on an equal footing. But the
judgment of a Qazi stationed at a place which
was a lower unit of administration, could be taken
in appeal to the Qazi of a higher unit. 1 There were,
so far as can be ascertained, no detailed rules limiting
the right of appeals to any particular class of cases. 2
No judgment delivered by a Qazi-e-Subah in appeal
has come to my notice but from the practice pre-
vailing in the Mughal period and from the nature of
his appointment as the Chief Qazi of the Subah
(MS. Or. 1886) I am of the opinion that a Qazi-e-
Subah could hear appeals from the District Qazi's
Chief features of the Sultanate
The judicial administration of the Sultans of
India had the following chief features:
1. Their institutions bore a strong resem-
blance to those of the Abbaside Caliphs.
2. The Shara' Law and the decrees of the
Courts were in general respected by the Rulers as
was the practice during the Abbaside rule in Bagh-
3. Special officers (Mohtasibs) were appointed
to prosecute people who were living an immoral
1 Compare procedure adopted in Appeals. Beveridge
I, p. 102. Re. practice during the Mughal period. See Elliot
vn, P . i 73 .
2 For details see Chapter on Procedure in Courts.
8 Compare Ameer Ali. Saracens, p. 62.
JUDICIAL SYSTEM UNDER THE SULTANS 1 2J
and thus, according to Shara', an illegal mode of
4. The village Panchayets were not disturbed.
5. Muhammad Tughlaq established the Diwan-
e-Syasat or Court of Correction for "hardened cri-
minals". 1 This institution, however, was abolished
by his successor Firoz Tughlaq. (Barni, pages 572-
6. Firo2 Tughlaq modified 2 the Ta'zir punish-
ments prescribed by the Shara' and introduced the
rudiments of a Code of Law.
7. Sikander Lodi (1489-1 517) created a new post
of the Judge of Common Law the Mir Adi. He
did not possess all the powers of a Qazi, but, it seems,
had jurisdiction to try civil cases, vide case of the
Court of Mian Bhua, Mir Adi. (Kennedy I, p. no.)
8. The King of Bengal (Yusuf Shah) started a
system of calling for weekly reports from the subor-
dinate judiciary about their work (Stewart, p. 101).
9. Newswriters (Munhyan) were asked to send
regular news about the daily work done by the offi-
cers to the Sultan (Barni, p. 284. Beveridge I,
10. The system of employing Pandits to ex-
pound the Law in civil cases between Hindus w^as
introduced by Iltutmish on the Abbaside model. 3
n. A number of corrupt judges were dismissed
by Firoz Tughlaq (Briggs I, p. 464).
1 Compare Camb. History of India III, p. 162. Barni,
2 Barni, p. 573. Compare Briggs I, p. 462,
3 Compare Ameer Ali. Saracens, pp. 1 8 8, 422.
128 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
12. Wazirs or Prime Ministers could be em-
powered to try special cases, vide State versus
Khwajah Ahmad and others, Shams Siraj Afif, p. 508
and State versus Shah Haidari and others, Ibn Batuta
(Lee) p. 146. This was also the practice during the
Abbaside rule. 1
O^C SHER SHAH AND His REFORMS
I have treated Sher Shah separately as his entry
into the Indian political world as founder of the
Sur^Dynasty in 1540 A. D. did not take place until
the Mughal Empire had been established and tem-
porarily dislodged, and he seems to me quite dis-
tinct from the other Sultans. His name is associated
with a great many reforms in the administration of
the country. It was said by him that the "stability
of Government depended on justice" (Stewart, page
128) "and that it would be his greatest care not to
violate it, either by oppressing the weak or permit-
ting the strong to infringe the Laws with impunity."
According to Briggs, 2 "Sher Shah was not more
remarkable for his good sense and talents than for
his justice towards his subjects. He left behind
him many monuments of his magnificence and
public justice prevailed in his Kingdom." 3 His
reforms touched upon everything sometimes not
quite, according to Abbas Khan,Jn conformity with
the letter of the Law. They may be summarised as
- 1 Compare J. R. A. S. 1911, pp. 635, 656, 657.
JjJ Vol. II, p. 124.
3 Stewart, p. 144; Compare Elliot IV, p. 411.
JUDICIAL SYSTEM UNDER THE SULTANS 129
1. He introduced the system of having in the
Parganahs separate Courts of first instance for civil
and criminal cases. At each Parganah town he sta-
tioned a civil Judge called a Munsif, a title which
survives to this day, to hear civil disputes and to
" watch the conduct of the Amils and the Moqad-
dams," 1 officers connected with revenue collection.
The Shiqahdars who had had up till now powers
corresponding to those of Kotwals, were given
Magisterial powers within the parganahs. They
continued to be in charge of the local Police. 2
2 . 'Moqaddams* or heads of the village councils
were recognised and were ordered to prevent theft
and robberies. 3 In cases of robberies, they were
made to pay for the loss sustained by the victim. 4
Police regulations were now drawn up for the first
time in India. 5
3. We are told at least that when a Shiqahdar
or a Munsif was appointed, his duties were enume-
4. The judicial officers below the Chief Pro-
vincial Qazi were transferred after every two or three
years. 6 The practice still prevails in British India.
5. The duties of Governors and their deputies
regarding the preservation of law and order were
1 Elliot IV, p. 414.
2 Erskine II, p. 443.
3 (i) Zabdatut Tawarikh, p. 189. (2) Tarikh e Sher
Shah I, p. 85 ,K. C.C.
5 Tarikh e Sher Shahi, MS., K. C. C.
6 MS. Abbas Khan, Vol. I, p. 82, K. C. C.
7 Elliot IV, p. 420.
130 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
6. The Chief Qazi of the province or the
Qaziul Quzat was in some cases authorised to report
directly to the Emperor on the conduct of the gover-
nor, 1 especially if the latter made any attempt to
override the law.
7. The Sultans had divided the Empire into
Subahs (Iqtas), Sarkars and Parganahs. Sher Shah
subdivided the Parganahs into Mahals or groups of
villages for Revenue purposes. This arrangement,
however, had no effect upon judicial administration.
The Panchayets continued to work as before.
The above reforms introduced by Sher Shah
slightly altered the gradation of Courts in the dis-
tricts as the table given below will show:
The Panchayets were not disturbed. The head
man, Moqaddam, was officially recognised and given
Police powers in the locality.
~~~ ' ^
1. Munsif Tried Revenue cases, including
those between "Zemindar" and tenant.
2. Shiqahdai>~-He was now empowered to try
petty criminal cases and was required as before
to maintain order in the Parganah as well.
3. AmU. His Court decided cases regarding
the assessment of rent due to the Government and
such cognate matters more or less of a departmental
nature. (Elliot IV, pp. 413-414).
1 Stewart, p. 143.
JUDICIAL SYSTEM UNDER THE SULTANS
1. Shiqahdar-e-Shiqahdaran. (MS. Abbas K.C.C.).
He was the Chief Magistrate of the District,
and seems to have in this respect replaced the Fauj-
dar in the time of Sher Shah. As mentioned in
Elliot IV (page 414) he possessed powers presumably
as a magistrate "to inflict heavy and exemplary
punishment on the lawless'. It is not quite clear how
he stood with regard to the Qazi, for actual offences
were to be brought 1 for trial to the Qazi's Court,
Probably the punishment alluded to was in the
form of taking 'security' or other measures for the
prevention of crime.
2 . Munsif-e-Munsifan."'
His main duty was "to watch over the conduct
of the Parganah officials so that they might not
"injure the people or embezzle the King's revenue"
(Elliot IV., p. 414), and to settle all boundary dis-
The other arrangements remained as they were
except that Kotwals were not appointed in unim-
portant places. The author of "Sher Shah" 2 thinks
that there were probably no Qazis and Mir Adls
during his time. This seems unlikely. At any
rate the statement is not supported by other evidence.
Sher Shah was a strict follower of the Shara' who
did not miss even the optional prayers, 3 and con-
temporary writers make no mention of his having
1 MS. 154. Abbas Khan, K. C. C, p. 85. "Moafiq Shara'
2 Qanungo, p. 399.
3 Elliot IV, p. 410.
132 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
limited or modified the jurisdiction of Qazis. Abbas
Khan^ who is generally accepted as an authority
for Sher Shah's reign, writes that persons accused of
theft and robbery in villages were to be apprehended
by Moqaddams and delivered over for trial accord-
ing to law (Muafiq Shara' Sharif). This can have
no other meaning except that they were to be tried
by Qazis (MS. 154, Vol. I, pp. 85-86, K. C C).
JUDICIAL SYSTEM UNDER
The Mughal Government was established in
India in 1526 A. D.J)y Zahk JLJddin Babat who de-
feated the last Lodi Sultan of Dehli and brought
the Sultanate to an end. His son, Humayun, was
turned out of the country by Sher Shah Sur in 1540,
but he regained his kingdom in 1555 and from
that date the Mughals ruled India effectively until
1750 A. D. and nominally up to 1857, when the last 1
Mughal Emperor was succeeded by Queen Victoria
as Empress of India,
The political divisions 1 of the Mughal Empire
(Saltanat e Mughaliah) were practically the same as in
the time of Sher Shah, The Emperor, 2 like the Sultans
3f Delhi, was the head of the judicial and the executive
departments and the centre of all civil and military
authority ruling as an absolute monarch, the Shadow
of God 3 (Ma ke sayae Khuda aim). All State offi-
1 Compare Br. Mus. MS. Or. 1779 and MS. Abbas Khan
K. C. C. Mirat Supp., p. 214.
2 The Mughal rulers did not adopt the title of 'Sultan*
and preferred to be known as 'Badshahs' or sometimes 'Shahen-
3 Compare Akbar Namah III, p. 2, Mirat II, p. 376, Tuzuk
(Price) p. 15.
134 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
rials were appointed by him. The gradation of offi-
cers and their duties was uniform 1 throughout the
provinces of the Empire (Jamee mumalik e mahroo-
sah) and officials were transferred 2 occasionally from
one province to another. According to Monserrate 3
the selection generally was based on efficiency and
capability and there was gradual promotion also.
The salary of the officers was paid monthly. 4 It
appears from the case of Mi^^ Muhammad Ghaus
mentioned in Safir-e-Oudh (page 2) that the same
system was adhered to even during the declining
days of the Empire. The officers of the State other
than those employed in the judicial department as a
rule had military rank (mansab) based on numbers
under their command, ranging from a platoon of
ten to an army of ten thousand and in the cases of the
Princes of the Royal family, to still larger forces. 5
The officers were expected to provide a number of
mounted men and to maintain them themselves.
In certain areas Government entered into "trea-
ties" with local landlords (Zemindars) such as those
of Kathiawar, Rajpipla etc. who were not recognised
as "rulers" but were allowed to pay a tribute (pesh-
kash) and to be responsible to the central govern-
ment for the maintenance of law and order 6 within
their respective territories.
1 Compare Sarkar (1935) p. 239, Mirat I, p. 268; Farman
for the whole of India.
2 Compare Mirat I, p. 331; Collections; Or. MS. 2011.
3 Compare Commentary, p. 206.
4 Br. Mus MS. 6, 599, f. 147.
5 MS. Or. 1779. Br. Mus. MS. Or. 1906-1907 Br. Mus.
6 Mirat Supp., pp. 190, 215.
JUDICIAL SYSTEM UNDER THE MUGHALS 135
The Central Government kept a department of
Newswriters (Waqae Nigars) 1 who collected infor-
mation locally and sent regular reports through
special messengers 2 (Harkaras). Those attached to
Courts of Judicature recorded the daily proceedings
of those Courts (Collections).
Secret reporters (Sawaneh Nigars MS. 6580
f. 425) were further employed to send a consolidated
report to the Emperor of all the officers in the place
where they themselves were posted, by which pro-
cess the news sent by the Waqae Nigars could be
The Central Government
The Emperor had a council of ministers who
were independently responsible to him for their
respective departments, but the most influential 3
among them was the Wazir or Vakil-e-Mutlaq (Su-
jan Rae) or Dastur-e-Muazzam (Ruqaat-e-Alamgir).
He was like the modern Prime Minister, usually in
constant touch 4 with the head of the State. Except
the judicial department, he had a controlling hand
in all other spheres of administration, and the other
ministers approached the Emperor through him 4
in the normal course of business.
The Revenue, Finance and Agricultural depart-
1 Mirat Supp., p. 150.
2 Mirat Supp., pp. 150-152; Storia II; pp. 331. 'Harkaras'
are still employed in British India to carry official letters to
officers in Camp.
8 Compare Monserrate, pp. 208-209. "The Secretariat was
presided over by a Chieftain of great authority and ability."
4 Compare Ibn Hasan, pp. 130-136.
136 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
ments were under the Diwan-e-Ala (MS. Add.
26,239 f. 41). He was also the final court of Justice
for Revenue cases. Sometimes the Diwan-e-Ala was
also the Prime Minister in addition to his own duties.
Military administration and the pay and accounts
were under the Mir bakhshi and the administration
of justice, jails, customs, baitul mal and mosques
was entrusted to the Chief Justice, Qaziul Quzat or
Aqzal Quzat (Alamgir Namah, page 232). The other
1. Darogha-e-Topkhanah or the Master Gene-
ral of Ordnance.
2 . Darogha-e-Dak (Post Master General).
3. Mir Saman (Lord High Steward of the
Imperial Household). Storia II, p. 419.
He may be compared with the chief of the
"Royal Cabinet" of Egypt.
4. Sadrus Sudur in charge of the Ecclesias-
tical Department. (Ain I, Blochman, p. 185).
5 . Mohtasib-e-Mumalik-e-Mahrusah or the
The Mohtasib, like the Attorney General of
England, was the Chief Public Prosecutor in State
cases. He was also the chief Censor of Morals and
kept a watch on drinking of intoxicating liquor,
prostitution and public morality. He was provided
with a staff of Officers (Mansabdars) an-d footmen
(Ahadis). Mulla Ewaz Wajih, a Chief Mohtasib of
Aurangzeb's period, drew a salary of Rs. 15,000
a year (Alamgir Namah, p. 392).
The Emperor was the Commander-in-Chief of
JUDICIAL SYSTEM UNDER THE MUGHALS 137
the whole army and Navy (Sultan-ul-Bahrain) (Amir-
( The most important change in the structure of
the central government introduced by the Mughals,
which has a bearing on the administration of justice,
was in the position of the Sadr. Under the Sultans
his authority to select Qazis and to grant land to
learned men (madad-e-maash), gave him immense
prestige and influence. Akbar issued orders that
in the matter of the grant of land the Sadr was always
to consult the Diwan, and he reduced his powers
further by giving the control of the judiciary to the
Qasiul Quzat. The position of the Sadr under
the Mughals has been very clearly explained by Dr.
Ibn Hasan in the Central Structure of the Mughal
Empire. Briefly speaking the Sadr under the Mu-
ghals still held an important position. All prosecu-
tions under the Canon Law required his sanction and
the letters of appointment for the posts of:
1. Qazi-e-Subah and Qazi-e-Sarkar.
3. Imam Leaders of prayers.
4. Mutawallis or Superintendents of Trusts,
and 'parwanas' for the stipends and bills for chari-
table endowments, were issued by him or on his au-
thority, (Mirat Supp., p. 149), and the Emperor gave
him more latitude than to others in the matter of
selecting his own departmental officers.
Under the Sultans, the departments of Qaza
(Justice) and Ihtisab (Censorship of morals) were
under the Sadr (MS. OR. 1887 f - 4 Br - Mus O but
Akbar (1558-1605) who was not in favour of so
138 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
much authority being held by one person separated
Justice from the Sadr. 1 The position of the Sadrus
Sudur under the Mughals can be said to be substan-
tially the same as it is now in the government of
H. E. H. the Nizam of Hyderabad, Deccan, where
the office of Sadrus Sudur is still retained. i
Another significant change effected by the Mu-
ghals was to give up the Abbaside practice of invest-
ing the Prime Minister with judicial powers 2 which
had been adopted by the Sultans. 3 The duties of
the Prime Minister under the Mughal Emperors were
confined to executive matters as were those of the
Chief Justice to judicial.
The following were the Provincial "heads":
1. Subahdar (Mirat I, p. 133) or the Governor.
2. Qazi-e-Subah (Mirat I, p. 321) or the Chief
3. Diwan-e-Subah or the Chief Revenue Offi-
4. Sadr-e-Subah (Mirat I, pp. 321, 335). He
represented the Sadrus Sudur in the Pro-
vince (Ain I, Blochman, page 270) and super-
vised the work of the District Sadars and
Mohtasibs in the Province.
5. Bakhshi-e-Subah in charge of Pay and Ac-
counts. (Mirat Supp., 150).
1 The posts of Sadr and Qaziul Quzat are shown separately
in Ain I, Bloch, page 185.
2 See Chapter HI.
8 Ibn Batuta (Lee) p. 146. Shams Siraj Afif, p. 508.
JUDICIAL SYSTEM UNDER THE MUGHALS 139
The Diwan was the Finance Minister of the
Province and all miscellaneous departments such as
Building (Taamir), Survey (Paimana Kash), Irrigation
(Darogha-e-Ju-e-Ab), worked under him, (Br. Mus.
MS. Or. 1779).
The chief officers working in the Sarkars were:
1. Qazi, in charge of administration of Justice.
2. Faujdar, maintained Law and Order. (Mirat
3. Amalguzar (Ain II, Jarrett, pp. 43, 45)
or Amils in the Deccan (Collections) settled
4. Bitikchi, Assistant to Amalguzar. (Ain II,
Jarrett, page 47).
5. Fotedar or Khazanadar (Treasurer). (Ain II,
page 49, Jarrett).
6. Sadr, Ecclesiastical Department (Mirat Supp.
7. Sadr Amin. Land Revenue Cases (I. O. L.
8. Karkun or Karori, Collection of Revenue
(Ain II, pages 43-47. Mirat I, page 307).
9. Kotwal, Police (Ain II, Jarrett, 41, 43. Mirat
I, page 1 68).
The staff of officers in a Parganah consisted of:
1. Qazi-e-Parganah. In charge of Justice.
(Mirat I, page 327; Farameen; Baqiat).
2. Amil-e-Parganah (Mirat I, pages 327, 342).
140 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
The collection of Land Revenue was made
under his supervision.
3. Qanungoe (Ain II, page 66), (MS. 6599)
"was the refuge of the husbandmen" and
assisted the Amil.
4. Amin, Munsif and Karori (MS. Or. 2011
Br. Mus.) (Farameen) (MS. 2907 I. O. L.).
Decided Land Revenue and rent cases.
5 . Karkun
Land Revenue Department. (MS. Or. 2011).
6. Wasan Kash. (MS. 6,599).
7. Faujdar or Shiqahdar. In charge of law and
order in the Parganah (Br. Mus. MS. 6,599).
8. Kotwal represented the Faujdar in the
Parganah in case no Shiqahdar was ap-
1. Pancbayet. Assembly of usually five men,
in charge of Justice.
2. Headman. President of the Panchayet,
known as Moqaddam (Mirat I, page 49) or
Chaudhri (Alamgir Namah, 595) (Dow III,
page LVIII) and in charge of "Law and
3. Patwari. Representative of the Revenue
Department and Recorder of rights (Ain II,
p. 45. Jarrett).
4. Village guard or Chaukidar or Rahdar. In
charge of traffic and of Saraes where travel-
lers lodged for the night. (Storia I, p. 68).
JUDICIAL SYSTEM UNDER THE MUGHALS 141
The administrative machinery in the seaports
was different though it worked under the Governors.
The chief officer in a port was known as Mutasaddi
(Mirat I, p. 335) who had "agents" working for him
in its subdivisions Baras (Mirat Supp., p. 188). There
were Qazis, Mohtasibs and Sadrs but they were
appointed by the Central Government. According
to Mirat-e-Ahmadi 1 there were 27 ports and 45
baras in the province of Ahmedabad only. The
admirals (Mir Bahr) and other naval officers (Daro-
gha) or Nakhudae Jahazat w r ere, as appears from a
Manual prepared during the reign of Shahjahan,
appointed directly by the Central Government (Br.
Mus. Ms. Or. 1779). Civil officers of the Executive
department, who held rank below that of a Faujdar,
had to sign an agreement or 'Zamni-Namah' more
or less on the lines of the covenants executed by
officers of the Indian Civil Service in British India.
Forms containing letters of appointment and of
'Zamni-Namah' are given in Ms. 6,599 Dasturul
Amal and OR. 2011 British Museum.
The pay of the officers and their establishments
was distributed monthly. (Ms. 6599. Br. Mus. 147).
The Central Government kept a department of News-
writers (Waqae Nigars) (Mirat Supp., p. 150) who
collected information locally and sent regular reports
through special messengers (Harkaras) 2 (Mirat Supp.
pp. 150-2; Storia II, p. 331). Those attached to courts
1 See supplement, p. 201.
2 A term still applied to messengers who carry official
letters to officers in camp in British India.
142 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of Judicature recorded the daily proceedings of Reve-
nue Courts (Collections).
Officers functioning as Courts
(Arbab-e-Adalat. Khafi Khan II, p. 607).
The Department of Law and Justice was known
as the Mahekmae Qaza during the Sultanate, The
word Qaza was, as it appears from Khafi Khan, re-
placed by 'Adalat' under the Mughals and the word
'Mahekmae Adalat* was generally adopted for the
Department of Justice as distinct from Mahekmae
Shariyah used for the Ecclesiastical Department. 1
The Qazi, Mir Adi, Mufti and Darogha-e-
Adalat belonged to the Mahekmae Adalat, but there
were also officers of the Revenue and other depart-
ments who had power to try cases such as the Diwan,
Faujdar, Kotwal and Amalguzar. I accordingly pro-
pose to discuss the functions of all such officers under
I. At the Imperial Capital. (Darul Saltanat).
J i. The Emperor. Like the English King of the
early Norman and the Anglo-Saxon period, the
Emperor was the first Judge of the realm and the
"fountain of Justice". He tried original civil and
criminal cases and also sat as the final aegis of appeal
within the Empire. When the Emperor heard ap-
peals he presided over a Bench consisting of the
Chief Justice and Qazis of the Chief Justice's Court
and decided questions both of Law and fact (Alamgir
Namah, pp. 1097, 1102). As a court of first instance,
. 217 f. 77.1. O. L.
JUDICIAL SYSTEM UNDER THE MUGHALS 143
he generally had the assistance of a Darogha e-Adalat,
a Mufti and a Mir Adi (Alamgir Namah, p. 1077).
Petitions were presented to him by the Darogha.
If he required any authoritative interpretation of
law he referred the matter to a Bench of the Chief
Justice's court for opinion 1 or he constituted a special
Bench for the purpose. 1
The Emperor's Court, when it could be held,
was popular and the public "made representations
and appeals without any fear or hesitation and ob-
tained redress from his impartiality." 2
The officers attached to his Court were:
2 . Darogha-e-Adalat.
3. Mir Adi. (Alamgir Namah, p. 1077, Bib. Ind.)
Their functions are described later in the
2. The Qa^ul Quyat or the Chief Justice. (Mirat
I, p. 340. Ain I, p. 185 Blochman). Next in import-
ance to the Emperor was the Qaziul Quzat. He
used to administer the oath of accession to the Sover-
eign and to order "Khutbah" to be read in the Em-
peror's name in the mosques in order to give vali-
dity to his accession. (Storia I, p. 381). (Mirat I,
pp. 240, 248). Some Chief Justices have been re-
ferred to as Shaikhul Islam in Tuzuk-e-Taimuri,
p. 67, Vol. I; Tazkiratul Ulema, p. 43, but this was
not their official title. It was a name used as a mark
1 Compare Dow III, p. xxx. Alamgir Namah, p. 1102.
2 Compare Elliot VII, p. 158; Kennedy II, pp. 74-77; Storia
III, p. 262. Anecdotes, p. 178.
144 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of respect and is so used even today among Indian
Muslims for the most learned man among them.
The appointment of the Chief Justice was made
by the Emperor (Fatawa III, p. 387). According to
SirJ^Sarkari "men of high scholarship and reputed
sanctity of character wherever available were cho-
The Chief Justice had power to try original
civil and criminal cases, to hear appeals from and
to supervise the working of the Provincial Courts. 2
He was assisted by one or two Qazis of eminence
who were attached to his Court as "Puisne Judges/' 3
His duties included: -
1. Leading the Friday and the Id prayers at
2. Attending state and other important fune-
3. Conducting marriage ceremonies of the Ro-
yal Family (Alamgir Namah, p. 644) (MS.
217 ff. 128-129 I. O. L.).
4. Supervision of the enforcement of the Law,
Ijra-e-Ahkam e Shariyah (Khafi Khan II
In the matter of fresh taxation the opinion of the
Chief Justice was invariably taken. The people in
Gujrat once protested and withheld payment of
dues on landed property until those taxes were sanc-
tioned by Qazi Muhammad Akram, Chief Justice
1 Sarkar (1935) p. 29.
2 Compare Elliot VII, pp. 172-173; Mirat I, p. 319.
3 Compare Dow III, p. xxx.
4 Compare Aurangzeb III, pp. 161-163.
JUDICIAL SYSTEM UNDER THE MUGHALS 145
(MiratI, p. 339). Similar was the practice in other
Muslim states in India which did or did not acknow-
ledge the Mughal supremacy. 1 The Chief Justice
was usually a man of reputation and influence. He
or his 'Puisne' Judges were sometimes sent on impor-
tant political missions 2 and one Chief Justice was
appointed Governor of Bhakkar (Darbar-e-Akbari
Once when the Central Diwan delayed payment
of money for the repairs of Court buildings, the
Chief Justice approached the Emperor direct and
obtained the necessary grant (Mirat I, p. 330).
The Chief Justices were sometimes appointed
directly from among eminent lawyers and some-
times a Chief Provincial Qazi, as was in the case of
Qazi Khan, was promoted to that office (Tazkira-e-
Ulema-e-Hind, p. 54 Lucknow). The author of
Maasirul Umara gives the following brief note about
the career of one of the famous Chief Justices of the
Abdul Wahab Vol. I, p. 235; Khafi Khan II,
pp. 216-217, 438, 439.
Grandson of M. Tahir Bohra of Patan (Gujrat).
Born in Gujrat. His grandfather, who was a learned
man, gave him special training in Theology, Jurisprud-
ence and Law. He finished his education early and
held discussions with noted lawyers of the time until
he built up a unique reputation for scholarship and
1 Compare Farameen, p. 221.
2 Vide Cases of (i) Qazis Abul Fazl and Abu Said. Qaz-
wini, pp. 255-256, 367. (2) Qazi Azeez (Hadiqat us Salatin, p.
2 5 8 )- (3) Q azi Sadr Uddin Briggs IV, p. 522.
146 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
piety (Dar wara' wa taqwa wa fan-e-Hadith yaganae
rozgar gardeed). Started teaching Law and reform-
ing his own community. Attracted the attention
of Mirza Aziz Kokah, Governor of Gujrat who helped
him. His reputation as a lawyer of sound judgment
spread all over the country. In 1658 he was appoint-
ed Qazi-e-Askar by Aurangzeb and shortly afterwards
was created Chief Justice of the Empire.
Went on leave in about 1676 on medical
grounds. Resumed duty for a short period and
The Chief Justices who served the Great Mu-
ghals from 1560-1712 A. D. were:
Qazi Mir Saiyad Muhammad.
Qazi Jalal Uddin.
Qazi Muhammad Said.
Qazi Muhammad Aslam.
Qazi Abdur Rahman.
Qazi Abdul Wahab.
Qazi Ali Akbar (Temp.).
Qazi ShaiHiul Islam Abdullah.
Qazi Saiyad Abu Said.
Qazi Khan Abdullah.
Qazi Muhammad Akram.
Qazi Mulla Haider (Qazi Khan).
3. Qa^i of Delhi. The Imperial capital had its
own Qazi who enjoyed the status of a Chief Qazi of
a Province. In temporary vacancies he was some-
JUDICIAL SYSTEM UNDER THE MUGHALS 147
times appointed to act as a Qaziul Quzat. 1
4. Qa^i-e-Askar. The military area in the
Capital had its own Qazi (Qazi-e-Askar) who moved
from place to place with the troops (Alamgir Namah, p.
1102). Sometimes the officer was styled Qazi e
Officers attached to Courts noted above
1. Darogha-e-Adalat. Applications filed in each
Court were received by an officer named Darogha-e-
Adalat. 2 He was sometimes called Darogha-e-Ka-
chehri. 3 Aurangzeb conferred the title of ^Fazail
Khan" on one of his Daroghas. 4
2. Mufti. One Mufti was posted in each Court
to give legal opinions, but not to give any judgment.
The Mufti attached to the Chief Justice's Court was
known as Mufti-e-Azam or Sadre Jahan. 5 Manucci
says 6 that there were two Muftis, but also says that
'they acted as Judges/ He does not explain whether
they were members of a Bench along with the Qaziul
Quzat or whether they possessed independent juris-
diction. In my opinion he is referring to the Qazis
who acted as "Puisne Judges" of the Chief Justice's
Court. His statement, however, does not alter the
position of the Mufti.
3. Mohtasibs. The Mohtasibs attached to the
1 Maasir-e-Alamgiri, Gale.; Tazkira-e-Ulema-e-Hind, p. 54;
Alamgir Namah, pp. 933-934.
2 Br. Mus. MS. Addl. 26, 239 f. 42.
3 Br. Mus. MS. Addl. 6, 599 and Or. 1779 f. 232.
*I. O. L. MS. 217 f. 116.
6 Ain I, Bloch, p. 185. The office is still retained in Hyde-
rabad State as Mufti-e-Azam.
6 Vol. II, p. 419, Storia.
148 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Capital were generally the Prosecutors in Canon
4. Mir Adi. He was an administrative officer
like a Darogha attached to Courts. For details see
Din>an-e-Ala (Add. MS. 2623 9, /. 41).
The duties and functions of this high official
have been discussed in detail by Dr. Ibn Hasan. 1
He was the final authority on Revenue and Financial
matters, and only in rare cases was any petition made
against him to the Emperor (MS. 370 I. O. L; Waqae
Alamgir, p. 67). He was mainly occupied with mat-
ters of financial policy in the state and judicial work
from the Provinces in form of appeals seldom came
Raja Raghunath, the Diwan of Aurangzeb had
the following titles: 2
"Wazarat Panah, Kifayet Dastgah, Shaista
Anwaa marahim wa Tafaqqudat Sazawar
Sanuf. Awatif wa talattufat."
II. Provinces. (Subahs).
(i) Governor (Sttbahdar). (Mirat I, p. 208). He
was called Nazim 3 in Bengal and Gujrat. His main
duty was to maintain law and order. In appointing
1 See Central Structure of the Mughal Empire, pp. 170-209.
2 MS. 370 I. O. L.
8 (i) Ain II, p. 37; Report of the Committee (1772-73) of
the House of Commons, IV, pp. 324-346. (2) Mirat I, p. 321,
Supp., p. 145.
JUDICIAL SYSTEM UNDER THE MUGHALS 149
Said Khan as Subahdar of the Punjab, Jahangir laid
stress on his duty to see that justice was properly
administered in his charge. 1 The Subahdar was
also the Commander-in-Chief of the army within
the Province. In matters of revenue and landed
property maamla-e-mali khalisah sharifah 2 his work
as a Court of Justice was particularly emphasized.
He possessed all the judicial powers exercised by a
Governor under the Sultans. 3 Shaistah Khan, the
Governor of Bengal was fond of regular judicial
work 4 and the example set up by him was kept up
by his successors in the days of the East India Com-
pany, 6 and Sunday was usually the Court day Roz-e-
adalat. According to Alexander Dow, appeals from
the Court of a Governor lay to the Emperor's Court
by way of petition, 6 but it appears that there was
no hindrance to their being filed in the Court of the
Qaziul Quzat. The salary of the Governors was
high. The Subahdar of Gujrat, for example, receiv-
ed Rs. 2,40,000 a year and the figure was raised still
higher in the time of Aurangzeb. 7
When the Governor left the Subah for urgent
reasons he could appoint the Diwan to act for him
during his temporary absence (Mirat I, p. 375).
1 Tuzuk, p. 6.
2 Mirat I, p. 282.
3 Compare Dow III (p. LIII), Storia III, pp. 263-264.
4 Eciwardes and Garret t, p. 190. Sarkar. Aurangzeb IV,
6 Letter dated 21-8-1772, pp. 371-372, I. O. L. Range A.
e Compare Lanepoole's Aurangzeb, p. 113.
7 Compare Mirat, Supp., p. 145. The Governors of the
four major Provinces in British India do not get more than
Rs. 1,50,000 a year including entertainment allowance.
150 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Attached Officers, i. Mufti. 2. Darogha-e-
During the later Mughal period (1750-1857)
the Darogha of the Governor's Court did a subs-
tantial amount of judicial work and in Bengal became
superior to the Qazi-e-Subah (Report of the Com-
mittee of the House of Commons 1772-1773. Vol.
IV, p. 324). He was empowered by the Governors,
who had become in effect independent rulers, to
try cases and to hear appeals presumably because the
Governor's other duties did not give him time to
attend to them. He tried serious criminal cases and
took cognisance of riots and affrays and suits relating
to landed property except claims to inheritance.
His official title was Darogha-e-Adalatul Aliah (MS.
Add. 9697). The change advanced enormously the
prestige of the Daroghah till his post was abolished
in 1820 A. D.
(2) Qasy-e-Subah. (MS. 6580 Mirat f. 425). Mi-
rat I, p. 334.
The Provincial Judicial Department was under
the Chief Provincial Qazi or Qazi-e-Subah* He
was appointed by the Emperor. 1 He had original
civil and criminal jurisdiction and was the Chief
Court of Appeal in the Provinces. His judicial
powers were co-extensive with those of the Gover-
nor (Elliot, VII, p. 172) and he had a permanent seat
on the Bench of the Governor's Court (Mirat I, p.
275). Appeals came to him from the District Qazis
1 Sir J. Sarkar thinks by the Chief Justice. The practice
does not seem to be as Professor Sarkar says. The appoint-
ment as a rule could be made by the Emperor.
JUDICIAL SYSTEM UNDER THE MUGHALS 151
(Safir-e-Oudh, p. 91) and he was consulted by the
Governor in cases where the use of the Sovereign's
prerogative came into question.
He was required to administer the oath of office
to a new Governor, to pay a formal call on him and
to attend the receptions given to him (Mirat, II, p. 2)
though it was not necessary for the Qazi-e-Subah
to seek interviews from or attend 1 the Governor.
Similar functions have still to be performed in Bri-
tish India by the Chief Justices of Provinces,
i. Mufti. 2. Mohtasib. 3. Darogha-e-Ada-
lat-e-Subah. (MS. 370. I. O. L.) 4. Mir Adi.
5. Pandit. 2 (MS. 2907 I. O. L. f. 40). 6. Sawaneh
Nawis (MS. 6580 f. 425). 7. Waqae Nigar (MS.
6580 f. 425).
His judicial duties were the same as were under
the Delhi Sultans. He was appointed by Royal
Farman 3 either directly or promoted from among the
District Revenue officers. 4
Appeals against his orders were usually taken
to the Diwan-e-Ala at the Imperial Capital but they
could be filed before the Governor as well.
1 Compare Essays on Islam. Khuda Bux, p. iz. Mirat I,
2 Compare Mill, History of India* III, p. 369. (2) Report
of the Committee of the House of Commons, 1772-1773, IV*
8 Mirat Supp., p. 148, also see I, pp. 208, 334.
4 Case of Saiyad Mohsin, Mirat I, p. 334.
152 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Officials attached to a Di watt's Court
1. Peshkar (Secretary) Mirat Supp., p. 148.
He was a "Mansabdar" appointed by the Emperor.
2. Daroghah or the Superintendent of the office.
This official like the Darogha-e-Adalat of the Gover-
nor's Court was invested with jurisdiction to try Re-
venue and Civil cases during the later Mughal period.
3. Mushrif or the Treasurer.
4. Tahvildar or the Cashier. The clerical staff
included a Munshi (Head Clerk), Huzur Clerk, Subah
Clerk, Clerks for crown lands and other miscellaneous
work, Record-keeper, Accountants, and Heralds.
III. Districts. (Sarkars).
Qazi (Shariyat Panah. Farameen, p. 228;
The principal judicial officer in the district, as
was the case under the Sultans, was the Qazi,
He was appointed by a Royal Sanad which was
issued 1 by the Sadrus Sudur. Ranking in his transla-
tion of Badaoni says 2 that the Qazi was under the
Sadr and refers to Ain I (Bloch) pp. 268, 270. He
seems to think that the issuing of a 'Sanad' made a
Qazi subordinate to the Sadr. This was no doubt
the practice under the Sultans but the Mughals
separated the Sadr and the Judicial departments.
The actual superior of the Qazi was the Qazi-e-Subah
and the issue of Sanads by the Sadr Department was
a mere matter of routine.
1 Compare Mirat Supp., p. 149.
2 Vol. I, p. 6 10.
JUDICIAL SYSTEM UNDER THE MUGHALS I J3
The main duties of a district Qazi were un-
changed during the Mughal period. He remained
in charge of the civil and criminal (judicial) adminis-
tration 1 and heard appeals from the Courts situated
in the country (Dow III, p. LVII). The Mughals
transferred the "Baitulmal" (fund for religious pur-
poses) and the department of clothing the poor in
the districts to his charge. 2 He and the Sadr formed
a joint Board to control these funds. The State
Treasury in the seaports was also placed under his
superintendence. 8 Even payments of 'madad-e-
maash* sanctioned by the Sadrus Sudur required the
Qazi's concurrence. 4
These measures were the result of the Mughals*
policy of reducing the authority and influence hither-
to enjoyed by the Sadrus Sudur. 5 The reforms
introduced by Akbar and Aurangzeb resulted in the
following additional functions for the District
1. In the matter of taking cognisance of offen-
ces his right to order enquiry with a view to prosecu-
tion was acknowledged as co-extensive with that of
the Police or the Mohtasibs; vide case mentioned in
Storia, III, pp. 122-123.
2. The Qazi became the official visitor of the
Jails within his jurisdiction and was given power to
inquire into cases of prisoners confined therein, to
revise proceedings in the cases of convicted prisoners
1 Compare Fatawa Kitab Adabul Qazi, Vol. Ill, pp. 250-375.
2 Mirat I, p. 338.
8 Roe, p. 142.
4 Mirat I, p. 335.
5 Compare Ibn Hasan, pp. 255-288.
154 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
and to release on bail persons under trial (Mirat I,
pp. 282-283). The successor of the District Qazi,
the Sessions Judge in British India, still performs
3. Aurangzeb placed the District Qazi in
charge of the collection of the Zakat and Jazyah
taxes and he was given a separate staff for this purpose
(Mirat, I, pp. 339, 295-299). (Khafi Khan, II, p. 606.)
The public mosques in the districts were also
transferred to his control. 1
4. He was required to lead the Friday and Id
prayers in the central mosque of the town (Collec-
tions and Farameen) and to attend important fune-
5. The marriages of Muslims were solemnized
before him. 3 Fryer, an English traveller in the
time of Aurangzeb, makes an interesting suggestion
that the practice of marrying before a Justice of the
Peace in Europe may have been borrowed from the
Muslims. In British India, Muslim marriages are
still performed before the present day Qazi who
retains the title though none of the official functions
of the Qazis of Mughal days.
6. The Qazis at a seaport were given the addi-
tional work of supervising the collection of customs
(Storia, I, p. 71; Collections).
The selection of a District Qazi was, as a rule,
made from among the lawyers and sometimes from
1 The Qaziul Quzat was the person in charge (Khafi Khan
IT, p. 606) and the District Qazi acted for him in the district.
2 Compare Mirat 1$ p. 330.
8 Fryer I, p. 237.
JUDICIAL SYSTEM UNDER THE MUGHALS 155
among those practising in the districts (vide appoint-
ment of Qazi Qaim AH, Baqiat, p. 22). He could be
promoted to Qazi-e-Subah or even to Chief Moh-
tasib of the Province (MS. 217. I. O. L. f. 57). His
salary was a grant of 'madad-e-maash' land and a
daily cash allowance in addition. 1 (Yaumyah naqdi
wa arazi mashroot khidmat). A Qazi could con-
tinue in service as long as his health permitted him
to do so or he could resign and start practice in the
same place where he had acted as Qazi. (Dunia
Murai vs. Qaim AH, Baqiat, p. 25).
Aurangzeb's order of appointment usually con-
tained the following instructions:
"Be just, be honest, be impartial. Hold the
trials in the presence of the parties and at
the Court house and the seat of Government.
Do not accept presents from the people of the
place where you serve, nor attend entertain-
ments given by anybody and everybody
Know poverty (Faqr) to be your glory
It may be interesting to recall here the advice
given by the Hon'ble Sir John Thorn, Chief Justice
of the Allahabad High Court, in 1938 to the Judicial
Officers in the United Provinces. In the course of
his address, Sir John said:
"In this connection I would say it is well to
discourage the blandishments, the courtesies
1 Compare Br. Mus. MS. Add. 6,580, f. 425; Compare
Mirat I, Supp., p. 149. The Farmans in the Appendix show
that a Qazi was entitled to a fee of Re. one from the parties for
every marriage that he performed within his jurisdiction.
2 Translation adopted from Sarkar (1935) pp. 27-28.
156 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
and the attentions of executive officers and
prospective litigants and to remember that the
highest officer of the State, the most senior
police officer, the wealthiest citizen in the
land, are entitled to no greater consideration
in your court than the humblest peasant.
Indeed, if any distinction can be justified at
all, it must be in favour of the latter."
The official title of the District Qazi was "Shari-
yat Panah" (Farameen, Mirat, I, p. 406; Baqiat) and
within the district he held the first place (kalaantar) 1
in the Warrant of Precedence. He was expected to
be present to receive the Emperor or the Governor
when they came to his district. When Maharajah
Ajit Singh, Governor of Bahadur Shah, visited one
of his districts in Gujrat, Qazi Khairullah led the
A District Qazi could be removed by the Em-
The District Qasi had a staff of ministerial offi-
cers as given below: 4
i. Peshkar. (Collections).
This post had duties analogous to those of a
modern Reader or Sarrishtahdar in some places.
It was held sometimes by a Hindu Kayasth 6 and
sometimes by a Muslim and curiously enough the
1 Akbar Namah.
2 Compare Mirat II, p. 2.
3 Compare Dow III, pp. 334-335.
4 Compare Dow III, p. LVII.
JUDICIAL SYSTEM UNDER THE MUGHALS 157
Reader in a Court in the United Provinces is usually
either a Kayasth or a Muslim to this day.
The modern Reader's duty of recording evidence
was then performed by the Katib who also wrote
the judgment dictated by the Qazi.
3. Sahebul Majlis. (Baillie, p. 766).
He was employed to read over their depositions
of witnesses in Court. Presumably a person other
than the one who wrote the statements was required
to read them over.
4. Amin. (Ruqaat MS. Oxford; Hidayah XX
He acted as Commissioner in cases (MS. 370
I. O. L.).
5 . Na^ir
He was in charge of the court buildings and the
6. Daft art
He looked after stationery and book-binding.
The Qazi had usually four to five orderlies
attached to his Court. 1 The District Judges in
British India are also given three to five orderlies.
In the time of Aurangzeb some Courts in Gujrat
allowed candidates on the "waiting list" to work
without payment. The rdsult was that they started
taking bribes. The matter came to the notice of the
Chief Justice with the result that they were removed.
(Mirat, I, p. 319).
1 Farameen, p. 228.
158 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
8. Mirdahas or Process Servers (Br. Mus. MS.
9. Muchalkah Nawts. He took bonds for at-
tendance from the parties or witnesses (Collections).
Numbers 4, 5, 6, 8 and 9 are still employed in
District Courts in British India in the same capacity.
Officers attached to Qa^i's Court
1. Darogha-e-Adalat. (MS. Add. 6,599 ^ 3 8 i
Alamgir Namah, p. 1077).
As superintendent of the Court he may be said
to be the predecessor of the present Munsarim em-
ployed in the Courts in the United Provinces. The
office was not of much attraction. Mulla Ghalib,
in the time of Aurangzeb, was offered this post but he
declined to accept it saying that it was a job for the
idle (Kare bekaran ast) Mirat I, p. 371. The Dis-
trict Qazi had the assistance of Mir Adls and in fact
did not require any more officers. The existence
of Daroghahs in the districts, however, continued
(Farameen, p. 149; Mirat Supp., 154) although in the
eastern districts the office was abolished by Aurang-
zeb (Ms. Add. 26239 f. 42).
A Daroghah was a Mansabdar and it was not
necessary in his case that he should be a lawyer
(Farameen, p. 149).
2. Mir AdL This position of this officer, as
Moreland has pointed out 1 , has not been clearly de-
fined by historians. Under the Mughals we hear
:>f him first from an order of Akbar recorded in Ain
1 India at the Death of Akbar, p. 34.
JUDICIAL SYSTEM UNDER THE MUGHALS 159
I, p. 283 (Text) about rules for judicial enquiries in
which the appointments of Qa2i and Mir Adi are
announced. "Yakay dar pae adalat anra Qazi na-
mand Wa deegray ba kar nishanad oora Mir Adi." 1
Jarrett has translated 2 this " (he should appoint
two) one to investigate whom they call Qazi, the
other Mir Adi to carry out his finding/' Wilson
in his glossary (p. 342) says:
"Mir Adi was an officer of Justice, a superinten-
dent of the courts who revised the decision of the
Qazi and Judges, passed sentence and ordered
Edwardes and Garrett consider 3 him merely
a Justiciary appointed by the Executive authority,
as occasion arose, to carry out the Qazi's finding.
Dr. Beni Prasad in 'Jahangir* (p. no) suggests
that "a Qazi investigated and a Mir Adi pronounced
the sentence". According to the author of c Shah-
jahan' 4 the offices of "Mir Adi" and Qazi were
combined into one during Shahjahan's reign. Among
contemporary writers Monserrate says 5 that Mir Adls
took part in the decision of cases. Muhammad
Ka7im thinks 6 that the Mir Adi's position was
like that of a Darogha-e-Adalat when he presented
petitions to Court.
1 1 have incorporated the correction given in the Bib.
Indica publication in the footnote.
2 Vol. II, Ain, p. 41.
8 Mughal Rule, p. 191.
4 p. 281.
6 p. 209, "Cases are decided by a double process before
6 Alamgir Namah, p. 1077.
l6o ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
"Mir Adi wa Darogha-e-Adalat taayyun namuda
ke mustagheesan wa dad khwahanra ba
arz wala mirasanand." (He has appointed Mir
Adi and Darogha-e-Adalat to present to him
people who come to his Court to seek redress).
I am of opinion that a Mir Adi possessed no
judicial powers such as those of a Qazi. His duties
were analogous to those of a Mufti. The Mufti
gave his opinion on a point of law and the Mir Adi
submitted report on fact and the case was made over
to him by the Qazi, after the judgment was delivered
for superintendence of proceedings in execution. He
was in fact a sort of superior Clerk of the Court.
During the Sultanate there was, as we have seen,
an officer called Dadbak or Amirdad attached to the
Court of the Qazi whose duty it was to see that all
men summoned by the Court were present, irres-
pective of rank, at the hearing. Sikander Lodi
(1489-1517) raised the status of these officers and
gave them powers to try Common Law cases with
the title of Mir Adi. Akbar retained them in Courts
but confined their duties to administrative matters
which, as Edwardes and Garrett observe 1 included
the execution of the Qazis* decrees.
The Mir Adi does not appear in Parganahs nor
was he to be found at all in some of the Provinces
viz. Bengal and Gujrat where the Daroghahs probably
carried out the duties performed elsewhere by the
Mir Adi. The reports of the Committee of the
House of Commons (1772-1773) make no mention
1 Mughal Rule, p. 191.
JUDICIAL SYSTEM UNDER THE MUGHALS l6l
of Mir Adls and in Mir at-e-Ahmadi also we do not
find any reference to their powers of deciding cases.
They are mentioned in the Zawabft-e-Alamgiri and
the Dasturs Br. Mus. MSS. Add. 6598 and 6599.
Sir Jadunath Sarkar's description 1 of Mir Adls as
Judges of Common Law during the reign of Aurang-
zeb as distinct from Qazis does not seem to be quite
accurate for there is no clear evidence of their exer-
cising judicial powers as independent Courts. They
certainly had no Staff or establishment of their own,
and they were themselves officials definitely attached
to the Qazis' Courts. The Qazis, too, were trying
Common Law Cases during that period. No offi-
cial manual exists which gives details of the Mir
Adi's duties. But an executive order issued by
Aurangzeb and mentioned in Br. Mus. MS. Addl.
6,599 f. 38 has the following reference:
"Mir Adi anche dafatir berasad ba waqei tahqeeq
agar khud qata* numaind behtar wa ilia arz
rasanand ba huzur mushakhkhas shawad. Qazi
ke maamlat ba huzure o berasad bar adl amal
namuda hukum bekunad." (Whatever reaches
the offices must be thoroughly enquired into
by Mir Adls and it would be better if they
settled the matter themselves or they may
submit a report to the Court. The Qazi on
getting the Report must decide in accordance
The power of "settling" the "matter" refers to
questions of office routine and not to the decision of
1 Anecdotes, p. 175.
1 62 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
cases fot which Aurangzeb generally used the word
"Fasle Qazaya" (MS. Raqaem-e-Keram K. C. C).
Another order of Aurangzeb refers to the Mir Adi
as an assistant to the Qazi on the same footing as a
"ba ittifaq-e-Qazi wa Mufti \va Mir Adi bar
\vafq millat shariyat gharra ba qata' wa fasl
rasanad." (Mirat, I, p. 257). (The case should
be decided with the help of the Qazi, the Muf-
ti and the Mir Adi in accordance with Law).
Mir Adls were not required to be "lawyers of
reputation" like the Qazis and w r ere men of practical
ability entrusted with the duty of carrying out the
findings of the Qazi (Ain II, Jarrett, p. 41), Shaikh
Ahmad of Lahore who was only a Superintendent
in Emperor Jahangir's household was selected as
Mir Adi in 1608 A. D. (Tuzuk, p. 28).
One Mir Adi in Arzdasht (MS. Add. 16,859 Br.
Mus.) refers to a civil suit between three Hindus
which was sent to him for enquiry by the Emperor
Shahjahan and he prepared his report and sent it to
"Le haza tarfaen ra dar Huzur rawana kar danee-
dah yaqin ke dar Adalat ul Aliah ruju shudah
moamlah khud faisal khwahand dad". 42
(a) and (b). (The parties have been directed
to proceed to the Royal Court. As the
original suit was filed there it is hoped that
His Majesty will decide it himself).
There is no mention of a Mir Adi having judicial
authority either in any of the earlier treatises on
Muslim Law or in any account of the Abbaside ad-
JUDICIAL SYSTEM UNDER THE MUGHALS 163
ministration. All mention of Mir Adls ceases dur-
ing the reigns of Bahadur Shah (1707-1712) and his
successors. (1712-1857). Nyamat Khan Aali, the his-
torian, of the period, does not refer to them and appa-
rently their position was taken by the Daroghahs.
(Bahadur Shah Namah MS. K.C.C.).
3. Mufti. Appointed by a Royal Sanad (Fara-
meen, p. 93).
4. Pandit or Shastri. (MS. 2907. I. O. L.).
5. Mohtasib-e-Baldah. (Farameen, p. i55)(MS.
6580 f, 425).
Mohtasibs were appointed in all districts by the
order of Aurangzeb, to enforce morality (Mirat I,
pp. 249-250; supp., p. 149). Their "departmental
chief was the Sadr.
6. Vakil-e-Sbarai. (MS. 6580 f. 425).
For the first time in the reign of Aurangzeb
suits against the State were defended by Lawyers
appointed wholetime in every district and known as
Vakil-e-Sarkar, Vakil-e-Shara' (Khafi Khan II,
pp. 249-252). They were attached to the Court of the
District Qazis and received a fee of Rupee one daily.
(Mirat Supp., p. 149).
These Vakils were further directed to give legal
advice to the poor free of charge. The appointment
was made by the Chief Qazi of the Province or some-
times by the Qaziul Quzat and their dutks according
to a letter of appointment given in Farameen, p. 152
1. To conduct suits on behalf of State.
2. To get decrees obtained by the State
164 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
3, To act as legal advisers for the properties
held in Trust by the Qazis.
Prosecutions in Criminal Courts were conducted
by Mohtasibs and the Police.
Officers not belonging to judicial Department
i. Sadr. The Ecclesiastical Department in the
district was in the charge of a Sadr appointed by the
Sadrus Sudur. Seddon in Mirat-e-Ahmadi Supple-
ment (p. 149) translates Sadr as District Judge and
enumerates his duties as given below:
1. Checking the 'Sanads' of Qazis, Mohtasibs,
Khatibs, Imams, Muezzins and Mutawallis.
2. Issuing "parwanahs" for the stipends and
daily allowances of officials and members of
Ulema in the City and other towns.
3. Passing bills for payment to charitable en-
Since he had no jurisdiction to try ordinary civil
or criminal cases, the word District Judge hardly
applies to him. His judicial duties w^ere limited to
the settlement of claims relating to madad-e-maash
grants or to sitting on a Bench with the District Qazi
to try a Canon Law case. The post was not well
paid and sometimes a Sadr of one district was made
Sadr of another perhaps as a measure of economy
(Farameen, p. 51).
2. Faujdar. (Br. Mus, MS. Or. 1779; Ain II,
Jarrett, pp. 40-41; Storia, II, pp. 450-451. Mirat
Supp., p. 145).
His judicial functions, for example trying petty
offences and taking "security" proceedings, were the
JUDICIAL SYSTEM UNDER THE MUGHALS 165
same as those of a Faujdar under the Sultans (MS.
6580 f. in b). In the early Mughal period he was
frequently transferred from one district to another
and was sometimes sent away from his charge to
conduct military operations (Khafi Khan I, p. 505).
Under the later Mughals his judicial powers in cri-
minal matters were enhanced 1 and like the Magis-
trates empowered under Section 30, Criminal Proce-
dure Code in British India he could try all offences
not punishable with death.
3. KotwaL (Storia I, pp. 197-198, II, pp. 420-421).
Manrique 2 and other European travellers have
described a Kotwal as a 'City Magistrate'. It is not
clear what exactly his judicial powers were. Wher-
ever he was stationed a Qazi was invariably posted.
It follows, therefore, that cases of a serious nature
could not be filed in a KotwaFs Court. From the
proceedings in State vs. Kotwal Said, Storia I, p. 197,
it appears that a Kotwal had powers to try cases. In
State vs. Manrique and others 3 (Kotwal's Court) two
of the accused were convicted of a breach of customs
regulations and were sentenced to whipping and in
addition were awarded imprisonment for one month in
each case. This shows that the Kotwal had jurisdiction
to try minor offences. Manucci, a contemporary Eu-
ropean traveller who had personal experience of Kot-
wals in those days says 4 that he was subordinate to the
District Qazi and Colonel Dow in his Enquiry sug-
1 Letter dated 21-8-1772, Vol. 19, I. O. L. Range A, pp.
37 I -37 2 -
Vol. I, p. 418.
8 Vol. II, pp. 137-138.
4 Vol. II, p. 421.
1 66 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
gests 1 that a judicial order passed by a Kotwal was
; appealable to a District Qazi.
4. Amalgu^ar. Am II, Jarrett, p. 43; Collec-
He was the Amil of the Sultanate period and
decided rent and revenue cases in which capacity
he was the predecessor of the present day Collectors
in British India. A Darogha-e-Kachehri was at-
tached to his Court (Or. 1779).
5. Waqae Nigar (Ms. Add. 6580 f. 425).
Waqae Nigars, Waqae Nawis or Akhbar Nawis
recorded proceedings of the above Courts daily and
sent them on to the Emperor (Collections; Mirat
Supp., p. 150; Storia II, p. 421). The latter was in
this manner able to supervise the work done by his
officers. These reports were scrutinised by the
Qaziul Quzat or the Qazi-e-Subah.
Subdivisions. (Parganahs) .
Qa^i-e-farganah. (Mirat I, p. 327; Farameen
The Qazi-e-Parganah was the principal officer
in the Parganah. He was appointed by a Royal
Sanad and his jurisdiction extended over the villages
included in his Parganah. He had all the powers
of a District Qazi except that he could not hear
appeals as there was no Court inferior to his. Canon
Law Cases were, as a rule, not taken before the Par-
ganah Qazi but before the higher Courts.
The salary of a Qazi-e-Parganah was not high.
i Vol. in, p. LVII.
JUDICIAL SYSTEM UNDER THE MUGHALS 167
He received madad-e-maash land from the Sadrus
Sudur and some small allowance (Mirat Supp., p. 149).
All Muhammad Khan says that Qazi Muhammad
Shafi of Parganah Meerut was given a special allow-
ance as he was unable to support his family on what
he had received before. (Mirat I, p. 327).
Officers attached to Qa^i's Court
2. Mohtasib-e-Parganah (Mirat I, p. 329, 249-
250. Farameen), p. 155, who had a staff of a few
Mansabdars and also infantry men.
Sometimes the Mufti of a Parganah was appoint-
ed Mohtasib as well in addition to his own duties
3 . Darogha-e-Adalat
The Parganah Courts had a Darogha where
necessary (Farameen, p. 148 and Appendix D. 2).
4. Vakil-e-Shara* (Khafi Khan II, p. 249) who
had a staff of 3 clerks and one accountant (Mirat
p. 149 supp). Sometimes the Vakils w r ere appointed
Qazis (Farameen. Appointment of Rasaullah).
i. Faujdar-e-Parganah. (Br. Mus. MS. Or.
Faujdars were sometimes posted to a Parganah
or group of Parganah s and exercised the same powers
as those of the district Faujdar. In a few districts
Amins or Revenue officers were appointed Faujdars
(Or. 1779) in addition, while in some places there
were no Faujdars at all and their duties were perform-
1 68 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
ed by Shiqahdats or Kotwals. (Mirat I, p. 342), or
Zamindars (Farman, Appendix D. 4),
2. Honorary Courts
The local landlords were sometimes appointed
in the Parganahs to try Common Law Cases (Baqiat
p. 6, Farman). Such appointments were notified to
the Public. Appeals from their Courts were taken
to the District Qazi's court. (Dow III, p. LVII).
3. (i) Karon.
Revenue cases in the Parganah were decided by
Karori and Amin whose powers may be compared
with those of Assistant Collectors, or Assistant
Commissioners under the Land Revenue Act in
modern Indian districts. The exact distinction in
their jurisdictions is not known.
All the officers mentioned above except the
Qazis were required (MS. Or, 1779) to ^g* 1 a cove ~
nant for the proper discharge of duties more or less
on the lines of the covenants executed by the candi-
dates selected for the Indian Civil Service before their
(D'ehat a word still in use in British India).
i. The Panchayet
The administration of justice in the villages
was, as was the tradition from ancient times, left in
the hands of village councils (Panchayet). 1 Their
1 Compare Sir Charles Metcalfe in the Report of the Select
Committee of the House of Commons, Vol. Ill, App. 84, p. 331.
"The village communities are little republics having nearly
JUDICIAL SYSTEM UNDER THE MUGHALS 169
powers in all matters civil and criminal were the re-
sult of old customs and administration went along
The Panchayet held its sittings in a public place
and administered justice in the village so far as
punishing small offences and deciding petty civil dis-
putes were concerned. The decision of the Pancha-
yet was binding and in most cases no appeal was
filed. The decrees were generally executed. 1
2. The Headman
The headman or the Chaudhri was usually the
President of the Panchayet and as Dow says a "unit
of judicial administration" (Vol. Ill, p. LVIII)
head of the lowest tribunal recognised by Law.
The Farman 2 dated Shaban 29. 1117 A. H. dec-
lares that he was to maintain peace and tranquillity
in the village and thus he occupied a position similar
to that of a Justice of the Peace in England.
In the East the Chaudhri was called the Moqad-
dam, in the West the Patel and in the South the
3. Zamindar. (Farameen) Or. MS. 2011.
In some places influential landlords were ap-
pointed to maintain order in local areas. 3 During
the later Mughal period they were invested with
powers to try civil and criminal cases of petty nature.
everything they want within themselves and almost indepen-
dent of any foreign relations. They seem to last where no-
thing lasts. Dynasty after dynasty tumbles down; revolution
1 Compare Maine, Village Communities, pp. 121-123.
8 See Appendix.
170 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
4. Grades of Courts
From the above analysis of the duties and func-
tions of the various officers of the department of
Justice (Mahakma-e-Adalat) it seems that the powers
of the Courts varied distinctly during the later Mu-
ghal period. It is, therefore, convenient to divide
the Mughal period into two parts namely
In the first period the following gradation of
Courts existed throughout 1 the Mughal Empire:
I. Villages. (De'hat).
Trial Court Powers Presiding Officer
The Panchayet Petty Criminal The Headman usu-
ally the Chaudhri.
(Vide Farman Ap-
(Compare Dow HI
Appeals, if any, to the District Qazi. (Dow)
II. Town. (Parganah).
i. Original, Civil All Common and Qazi-e-Parganah.
and Criminal Civil Law Cases. 2 (Dow III, p. LVII).
a late -Parga-
Appeals to the District Qazi.
1 Compare Sarkar. "All the 20 Indian (Provinces) of the
Mughal Empire were governed by means of exactly the same
administrative machinery with exactly the same procedure and
official titles." Mughal Administration (1935) p. 239.
2 He had powers to try Canon Law cases but none seems to
have been tried by a Parganah Qazi. The Mohtasib had liberty
to prosecute the accused in any Court within the District.
JUDICIAL SYSTEM UNDER THE MUGHALS IJI
Trial Court Powers Presiding Officer
z. Kotwali. Modern Police Kotwal-e-Parganah.
Appeals to the District Qazi.
3, Kachehri, Revenue Cases. Amin.
p. LV. Ain II
p. 46.) Later
Appeals to the District Amalguzar.
Karoris were Revenue Officers posted in Mahals
III. District. (Sarkar).
1. The Chief All Civil, Canon Qazi-e-Sarkar.
Civil and and Criminal Law
Criminal cases. Appeals
Court of the (DowIII,p.LVII).
Appeals lay to Qazi-e-Subah. (Elliot VII, pp.
2. Riot, Security Cases corresponding The Faujdar.
Cases. (Faujdari with those under
Adalat). Sections 107, 109
and no Indian Cr.
P. C. Affray and Po-
lice Act Cases.
Appeal lay to the Governor's Court.
3. Kotwali. Modern Police Act Kotwal-e-Shaher.
Appeals to the District Qazi. (Mirat I, p. 283;
Dow III, p. LVII).
4. Amalguzari Ka- Revenue Cases. Ap- Amalgusar.
chehri. peals from Town
Appeals to the Provincial Diwan.
172 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
IV. The Provinces
i. (a) The Gover-
nor's Bench. Ada-
lat-e - Nazim-e-Su-
(b) The Gover-
nor's own Court.
Appeals lay to the (i) Emperor's Court (2) Chief
Justice's Court (Elliot VII, p. 173) by way of petition
as is done in Appeals to the Privy Council (Compare
Dow III, p. XXXIII).
2. The Chief Appel-
Canon Law Gases.
Appeals lay to (i) the Governor's Bench (2)
Appellate Original. The Diwan.
The Chief Reve-
Appeals lay to the Imperial Diwan.
The Imperial Capital.
1. Emperor's Court.
2. The Supreme
Mazalim of Au-
Nazar fil Mazalim,
Ameer Ali, Sara-
cen, p. 422.
(*) The Chief
Court of the Em-
Original with Muf- Emperor,
No. Appeal lay.
No appeal lay but petition in Revision could be
moved in the Emperor's Court or his inherent
powers could be invoked.
JUDICIAL SYSTEM UNDER THE MUGHALS 173
3. The Chief Reve- Appellate,
nue Court. No Appeal
In Revisional matters application could be
moved in the Emperor's Court or the Emperor
could take action, suo motu, vide case reported in
MS. 370 I. O. L.
iMter Mughals (1750-1857).
The Provinces assumed independence and the
Executive officers started trying the cases them-
selves. The following grades of Courts worked in
Bihar and Bengal. (Letter dated 21-8-1772. Range
A. Vol. 19. Home Misc. 529 I. O. L.).
A. Criminal Courts
1. Faujdar: tried Criminal and Common Appeal to Nazim-
Law Cases. e-Subah.
2. Zemindar: tried Criminal and Common Appeal to Nazim-
Law Cases. (Mostly petty e-Subah.
cases in a * summary' man-
3. Qazi: enquired into Murder Cases Appeal to Nazim-
only and submitted report e-Subah.
4. Kotwal: Petty Criminal Cases.
jB. Civil Courts
i. Qazi: heard claims of inheritance Appeal to Nazim.
and transfer of property
Zemindar: All Civil and Common pleas Appeal to Nazim.
except those mentioned
above B. (i).
3. Qanungoe: Revenue Cases.
174 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
2. PROVINCIAL HEAD QUARTERS
(1) Murder Cases.
(2) Appeals from District Courts.
(3) Applications in Revision. No Appeal
(4) References from District Courts viz.
difference of opinion between Qazi and
B. Darogha-e-Adalat Diwani.
Heard all civil suits and appeals including
those relating to Real Property and Land.
Inherent power to hear all Revenue Cases.
D. Darogha-e-Adalat Aliah.
Disposed of all Revenue work on behalf of
No cases went to the Emperor as the Governor
(Na2im) became, in practice, the final authority.
As noticed in the seventh report of the Com-
mittee of Secrecy of the House of Commons, 1773
p. 324, the Common Law Courts in Bengal during
the later Mughal period did not try offences involving
capital punishment, but their jurisdiction extended
to criminal cases of other kinds. The presiding offi-
cers of those Courts were the Faujdars and the Ze-
mindars who were also the executive officers within
their respective areas. The Qazis were left to try
murder offences and the civil suits. In criminal
cases their orders could not be carried out without
the sanction of the Nazim.
JUDICIAL SYSTEM UNDER THE MUGHALS 175
Murder Cases were sent direct to the Court of
the Qasis by the Police, or if started on a private
complaint, the hearing commenced without the
case being "committed for trial" by a subordinate
PROCEDURE IN COURTS
Jurisdiction. (Kitabul Qa^a Fiqh, Adabul Qa^i^ Fata-
wa, Vol. Ill)
Qazis, to whatever offices appointed, \vere en-
joined to be watchful of their jurisdiction and were
not to exceed it (Fiqh-e-Firoz Shahi). They could
try only those classes of cases which were specified
in their letter of appointment (Fatawa Vol. III. Ada-
bul Qazi). The King, the Qaziul Quzat, the Subah-
dar within the Subah and the Qazi-e-Subah within
his charge alone had inherent jurisdiction in civil
and criminal cases corresponding to the powers
vested in the modern Indian High Courts (U. S. 561
Cr. P. C. and S. 115 C. P. C.)
The Qazis could not decide suits in which they
were personally interested 1 (Fatawa) but they could
be appointed in their home districts, 2 vide letters of
appointment in the Appendix. Emphasis was laid
on the trial of cases *on the spot if possible. 3 So
strong has been this tradition that to this day we
often find an Indian litigant pressing the Court to
inspect the spot or to hold the trial in his village.
A Qazi was not debarred from trying a criminal case
1 Compare S. 556, Cr. P. C. in Br. India.
2 Compare Ain. Text I, p. 283. "Az hal o Ja agah".
8 Compare Elliot VII, p. 172.
PROCEDURE IN COURTS 177
because he was himself an eye witness, but the Fata-
wa-e-Alamgiri states that if a Qazi was proved to have
taken a bribe and thus become an interested party, his
judgment was null and void as an illegality. If a
Plaintiff resided in the cantonment area and the
Defendant in the civil, a Qazi-e-Askar had to be
empowered to try that case, or the Qazi of the civil
area could settle the dispute without being so em-
powered (zira ke vilayet o am ast). 1
The powers of the Appellate Courts and their
jurisdiction in Revisional matters were not defined.
The principle underlying the system as followed by
the Sultans and adopted by the Mughal Emperors
was that a decision of a lower Court could be chal-
lenged in a higher court and the political divisions
of the State determined the status of the Courts.
From the nature of their office the King and the
Qaziul Quzat possessed jurisdiction to try cases all
over the Empire, vide State vs. Faiz Sherwani,
(Briggs I, p. 253, State vs. Seif Ala, Dow III, p. 105,
State vs. Haibat Khan, Briggs I, p. 253.) Also refer
to Elliot VII, p. 173 and Kennedy II, p. 39.
Constitution of Courts
In the normal course of business there was only
one presiding officer in a regularly constituted Law
Court. The letters of appointment issued to the
Qazis show their duty of deciding cases (Fasl-e-Qaza-
ya) without sharing it with anyone (bila shirkat-e-
ghairay). The announcement made was that people
1 Compare Ibn Hasan, p. 312.
178 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
should consider him the 'sole Judge' of their disputes
(degray ra sahim o sharik-e-o na danand) 1 . The
Muftis, Mir Adls or the Dadbaks, as I have shown
above, did not possess Qazis' powers, although
the opinion given by the Mufti on a law point could
not be ignored by the Qazi and in a case of difference,
reference to a higher Court was necessary. 2
Canon Law cases, however, were tried by Ben-
ches. (Elliot V, p. 543; Stewart, p. 410; Mirat-Supp.
pp. 45-46, Sarkar, Aurangzeb III, p. 113; Elliot IV,
p. 464. State vs. Chabila Ram, Aurangzeb I, p. 174
(Sarkar); State vs. Sidi Maula, Badaoni I, p. 171. At
the Provincial and the Imperial capitals 3 appeals
were sometimes heard by Benches vide Safir-e-Oudh,
p. 5 and State vs. Budhan, Beveridge I, pp. 101-102.
There was no illegality 4 in the appointment of two
judges, as happened in State vs. Yusuf, Briggs IV,
p. 518, to hold a trial, but regular cases in the first
instance including murder offences 5 were tried by a
single Judge only. In Canon Law cases the Sadr of
the place was usually the other member of the Bench. 6
The tradition of the early Caliphs of Islam was to
refer intricate questions of law or of fact arising in
1 See the letters of appointment issued to (i) Qazi Raza-
ullah (Appendix), (2) Qazi Niamatullah (Baqiat), (3) Qazi Nasir
2 Compare Case. Safir-e-Oudh, pp. 5-6. E. I. Co. Letter
dated 15-8-1772 and the Report of the Committee of the House
of Commons. Records I. O. L. Vol. IV. pp. 324-346.
8 Compare Order of Aurangzeb, Mirat I, p. 275.
4 Compare Mawardi J. R. A. S. 1910, p. 771.
6 Khafi Khan II, pp. 257-258. State vs. Mirza Beg; State
vs. Prince, Mirat I, p. 49. State vs. Haibat Khan, Briggs I, p.
6 Vide Cases mentioned above.
PROCEDURE IN COURTS 179
any case to the Ulema (Lawyers) and decide those
points in accordance with the opinion of the majority.
The Sultanate and the Mughal Courts adhered to the
essentials of this practice and sometimes referred
issues ad hoc to the Ulema for opinion, vide State vs.
Sidi Maula, Barni, p. 211; State vs. Yusuf, Briggs
IV, p. 517; Ausaf Ali's case, Baqiat, p. 28. State vs.
Laudhan, Elliot IV, p. 464. No precise rules re-
garding Benches were framed (Al Qaza fil Islam, p.
87) as is now the practice in modern Indian High
In matters concerning possession of land, how-
ever, where a breach of the peace w r as apprehended,
jurisdiction seems to have been conferred both on
the Qazi and on the chief executive officer of the place
to determine the claim. The case, All Raza and
Afzal Ali vs. Mir Muhammad Wali relating to dis-
possession from land (Baqiat, p. 18) was tried by a
Faujdar and a Qazi. Similarly Muhammad Wali's
claim to possession of a jungle (Dhak) against Mu-
hammad Shahid, (Baqiat, p. 23), was heard by a Qazi
and a Daroghah and the suit for dispossession from a
grove between Bahar and Abi Muhammad (Baqiat,
p. 12) was decided by the Qazi and the Thanadar of
the Qasbah. It is not clear to w T hich Court the Ap-
peals from these orders were taken, but at all events
such orders came under the inherent powders of the
Governor or the Qazi-e-Subah.
It may be interesting to note here that the pro-
cedure adopted in such cases in Modern India is to
split such disputes into two parts. The sub-divi-
sional or Parganah Magistrate sitting singly decides
1 80 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
U. S. 145 Cr. P. C. which patty is in immediate pos-
session and then the other patty, if not satisfied with
the Magistrate's decision, may file a suit in the Civil
Court to establish his claim to ownership.
Transfer of Cases
The power of ttansfetting cases from one Coutt
to another appears to have been vested in the King
and the Governor only. Akbar used to withdraw
original civil suits from the Qazis 1 and Shahjahan
transfetted the case of a Hindu clerk to his own Court
(Storia I, p. 203). The Governor of Carnatic trans-
ferred the case Manucci vs. The Portuguese, to an
English Magistrate in the East India Settlement
(Storia III, p. 128). A matrimonial case on the file of
the Qazi of Parenda was transferred to that of a
neighbouring Qazi by the Governor of Parenda
(Collections). It is not clear if the Qazi of a Sarkar,
like the modern District Judge in India, had power
to transfer cases from the Court of one Qasbah
to that of another within his own territorial juris-
Any case could be withdrawn from any Court
by the Plaintiff or Complainant and taken to the
highest tribunal more or less on the grounds that
are now pressed when applications for transfer are
moved. Aurangzeb transferred a civil suit to his
own Court suo motu (Waqae, pp. 32-35).
The Qazis of Qasbahs and Parganahs were sub-
ordinate to the District Qazis only in so far as Appeals
1 Compare Smith. Akbar, p. 345. Eclwardes and Garrett,
PROCEDURE IN COURTS l8l
against their judgments lay to the latter more or
less like the Magistrates of the first class in British
India being subordinate to the Sessions Judge. They
had, like the present Civil Courts, administrative
power over their Staff, but the Qazi-e-Subah was
empowered to issue orders to them on judicial and
Procedure in Civil Cases
(Kitab ud daVa, Fiqh-e-Firoz Shahi).
The following procedure as prescribed in Fata-
wa-e-Alamgiri was observed:
The Plaintiff had to file his claim at the sitting of
the Judge (Vol. IV, p. i). An agent duly authorised
could file it. If the case was in order and not palp-
ably absurd (IV, p. 87) the opposite party or whom-
soever the Court thought interested in the suit, was
summoned. The Defendant was then required to
admit or deny the claim (IV, pp. 84-87).
If the Defendant denied the Plaintiff's claim,
issues were framed and the Plaintiff was required to
produce his evidence. If the Plaintiff pressed that
the Defendant should take an oath and the latter dec-
lined, the Plaintiff could get a decree or the refusal
by the Plaintiff to take the oath when required by
the Defendant could result in the summary dismissal
of the claim, vide Nusrat Ali vs. Qaim Ali (Baqiat,
If the Plaintiff produced evidence, the Defendant
was given an opportunity to bring evidence in re-
buttal. New issues could be framed and fresh evid-
1 82 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
ence admitted if the Court thought it necessary. 1
Judgment was to be delivered after the whole
evidence had been properly weighed.
Absence of Defendant
According to Hidayah a decree could not be
passed against an absentee Defendant unless his re-
presentative was present. Imam Nawawi 2 thinks
that the Court could send the record and evidence
to the Qazi where the Defendant resided for his
statement, and on getting the record back decide the
Abatement of Suit
If the Plaintiff died, the suit abated, vide Har-
kishen vs. Ram Rai Aurangzeb's Court (Sarkar,
Aurangzeb III, p. 353).
Proceedings in Criminal Cases
The procedure in criminal cases was simpler.
There was no system of 'commitment for trial' and
the Criminal Courts followed a uniform practice.
The complaint was to be presented to Court person-
ally, or through a representative. Government pro-
secutions were instituted by Mohtasibs (Badaoni I,
p. 187) or Kotwals. The Court had power to call
the accused at once or it could insist upon hearing
the Complainant's evidence before summoning him,
vide Complaints of Sir Thomas Roe against Zulfiqar
1 Vide (i) Beveridge I, p. 102. (2) Storia III, p. 264. (3)
Stork I, pp. 199-200.
2 Minhaj f p. 509.
PROCEDURE IN COURTS 183
Khan (Roe, pp. 141-142) and Asaf Khan (Roe, pp.
In petty cases no record was kept except a note
in a Register (Musajjilat). The sentence was pro-
nounced in open court.
Absence of Parties
Evidence could be heard 1 in the absence of an
absconding accused, but prosecution witnesses were
to be recalled when he was arrested and his trial com-
menced. (Kitabul Ikhtyar MS. Add. 22714 f. 35).
(Kitabul Mafqud, Fiqh-e-Firoz Shahi).
If the complainant was absent the accused was
to be released. In State vs. Sulaiman and Others
(Collections) a murder case, the heirs of the deceased
did not appear to prosecute the case and the accused
were discharged. This can only happen in British
India if the alleged offence is punishable with not
more than six months' imprisonment. No judg-
ment could be pronounced in the absence of both
the parties or their Counsel 2 (Vakil).
In offences against religion Mohtasibs or the
Censors of morals were the Prosecutors 3 (Badaoni
I, p. 187). In other State prosecutions the Kotwal
had this duty or the Faujdar in places where there was
a Faujdar but no Kotwal. Shiqahdars also could
1 Compare S. 512, Cr. P. C.
2 Fatawa III. Kitab Adabul Qazi, Luck. Ed. pp. 519-520.
3 Sarkar (1935) p. 30.
1 84 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
report to the Qazis for cognisance of cases in Par-
"Personal 'Enquiry by Court
Courts were not debarred from making extra-
judicial enquiries whether direct or through an agent-
Muzakki. Such enquiries were encouraged by some
Kings 1 , vide Saiyad vs. Mian Malik, (Elliot IV, p.
454; Ain II, pp. 37, 41; Waqae, p. 88.
Jahangir, when trying the case of Moqarrab
Khan, postponed the trial in order to make a "per-
sonal" enquiry. 2
Alexander Dow, in his Enquiry, writes as follows
about methods employed by Jahangir to get infor-
"Jehangi* boasted of his humanity as well as
of his justice... Though he was often furious and
distant among his domestics he was fond of throwing
off the character of the Emperor, of enjoying freely
the conversation of his Subjects. "He often dis-
appeared in the evening from the Palace and dived
into obscure punch-houses, to pass some hours in
drinking and talking with the lower sort. He had
no enemies, and he was under no apprehensions
concerning the safety of his person."
He was able to get first-hand information in
making up his mind, "the people loved his familiar
openness and did not by rudeness abuse the trust
reposed in them by their Prince." (Vol. Ill, p. 102).
The practice seems to have been started by the
1 Ain I, p. LIII (Blochman).
2 Tuzuk, p. 83.
PROCEDURE IN COURTS 185
Abbaside Caliphs (J. R. A. S. 1910, p. 794) and was
followed by the Sultans and the Mughal Rulers.
In some cases enquiries were made through
others (See i. Collections. 2. Tuzuk, Wahab's
Case, p. 306).
The final judgment of the Court was recorded
in a book of judgments Kitabul Hakam. 1 So far
as I have been able to discover no copy of such book
is now extant. A Judgment was not signed by the
presiding officer, though an impression of his seal
was put on the top. 2
The seals of the Mughal Emperors were kept in
their Harems 3 usually with the most trusted lady.
The finding on an Inquest had to have the Qazi's
seal and his certificate that there was no "foul play". 4
Judgment was pronounced in open Court 5
unless the delinquent, in a criminal proceeding, was
considered so dangerously influential that a public
trial was against the interest of the State. 6 The
Courts were enjoined to write their judgments "care-
fully so that the learned men might not pick holes
in them" and "bring the Courts into shame". 7 Mon-
serrate in his Commentary (pp. 210-211) says that
judgments were delivered "only verbally" and "not
1 Ibn Hasan, p. 312.
2 Vide judgments in Baqiat.
3 Compare Monserrat % p. 209. Ibn Hasan, p. 101.
4 Compare Ameer Ali Islamic Culture 1927, p. 348. Elliot
IV, p. 18.
6 Compare Manrique II, p. 189.
8 Compare Dow III, pp. xxx and xxxi.
7 Compare Sarkar, 1935, p. 28.
1 86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
recorded". He is presumably speaking of Akbar's
reign, but it seems that since the Ain-e-Akbari itself
required the Courts to maintain a careful record and
sentences of death were to be submitted to King
for confirmation there must have been some record
of judgments kept. Decrees in civil disputes were
prepared in accordance with the judgments on a
prescribed form. 1
The Qazis, like the present District and Ses-
sions Judge in India, could try any suit and pass
any sentence in a criminal case. If the sentence was
of death it was under the Mughal Emperors to be
submitted for confirmation to the King or the Gover-
nor. 2 In British India the law still requires a Ses-
sions Judge's death sentence to be confirmed by the
Records of Cases. (Fatawa, Vol. VI, pp. 249-371)
Records of cases were not to be destroyed and
they were to be available if requisitions were made
by other Courts, vide order of Aurangzeb in Azmat
Ullah vs. Ghulam Muhammad (Baqiat, p. 5, also p. 4.
See also Safir-e-Oudh, p. 6.) Aurangzeb, in remand-
ing a case for further enquiry, not only gave direc-
tions to the Court but pointed out rules of procedure
which had not been observed (Collections). In
1 Compare Fatawa (Baillie), pp. 763-769. For fuller dis-
cussion see later.
2 Vide Storia III, p. 264, II, p. 419. Thevenot III, Ch. X,
p. 19; Compare Khafi Khan II, p. 550. Dow III, p. LVIII.
PROCEDURE IN COURTS 187
another bail appeal Aurangzeb found the reasoning
of the lower Court defective "bewajeh Sharai" (See
Kalimat ut Tayyebat, MS. K. C. C.) Manrique in his
Travels, Vol. II, p. 160 gives the following note:
"Facing the Tribunal stands a fine palace in
which the Principal Nabobo resides. He pro-
mulgates all favours, decrees and privileges made
by that Majesty, their copies being kept in the
archives at this place."
Apart from these instances there are other in-
dications that there was a Law of Procedure which
required the whole proceedings, including a repeti-
tion of the plaint Mahzar, to be recorded in a 'Sijil'. 1
It also appears from Hidayah (p. 336) that the Qazi
was required to keep his records and papers carefully
and hand them over to his successor. Aurangzeb,
after reviewing a judgment, issued a circular (Collec-
tions) that all decrees, sale deeds, mortgage bonds
and other legal documents should be carefully written
Evidence is to be found of the issue to parties
of copies of decrees and of papers on the record. 2
1 See Fatawa VI, pp. 249-371. There is a whole chapter on
the Records. Compare Fatawa, Baillie, p. 763.
2 Compare Shahjahan of Dihli, p. 127. "Every detail was
recorded with scrupulous care and minuteness not at one place
but at several places. It will not be too much to suppose that
those records which passed through many hands were fairly
accurate and supplied the want of written Law". Compare also
Ibn Hasan, chapter on Farmans. See Mirat Supp. p. 149
where reference is made to Record Keepers of the Court of
1 88 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
In most cases they bore the signatures or seals of the
witnesses and a certificate of their correctness (Muta-
biq asl) was given by the Qazi (Baqiat, pp. i, 2, 5, 9,
10) under his seal.
Judgments were not regarded as binding pre-
cedents on the points with which they dealt. The
Courts were to decide according to what God had
revealed (bima anzalallah) and not according to what
man had decided and might have decided wrongly.
We do not, therefore, find Law reports in the me-
dieval period corresponding with those of Modern
Aurangzeb (1657-1707) issued orders 2 in 1672
for the preparation of "Mahzarnamahs" or records
of judgments of higher Courts for circulation among
the Qazis and Muftis^ 3 They were not published and
it is not clear if the public had any access to them.
The Hidayah (p. XXVIII) mentions a Digest of
Cases (Mabsut) prepared by AbulJHasan bin Ali bin
Muhammad. But neither the Mahzarnamah nor the
Mabsut contains the details which are found in
modern Law reports.
During the Mughal period the Muftis were en-
joined to copy out precedents to read and to place
them before the Qazis. 4
1 Compare J. R. A. S. 1910, p. 761.
2 Compare Sarkar (1935), p. 234. My friend, Professor
Habib, tells me that, according to Shams Siraj Afif, one Tatar
Khan compiled several volumes of judgments of the Qazi of
Dehli in the reign of Firoz Shah Tughlaq.
3 Compare Mirat-e-Ahmadi I, p. 258.
4 Sarkar (1935), p. 28.
PROCEDURE IN COURTS 189
Manucci does not regret the absence of Case
law as it "discouraged venal lawyers and brought
swifter justice." This statement is true, in spite of the
collection of cases in the Fatawa, in the sense that
cases referred to in the Hidayah or in the Fatawa
could not be authoritative in the same way as modern
rulings. They were not cited in the manner done
now. No mention of the Court was made nor of the
date of the decision. It was perhaps this fact which
led Sir William Macnaghten to compile his 'Prece-
dents' with dates and other necessary details in 1829.
Representation through Lawyers
(Fiqh, Kitabul Vakalat. Fatawa, vol. III. Kitabul
Vakalat). (MS. Add. 22714 f. 8). Vakils.
Their duties are mentioned in the two Muslim
Indian Codes, Fiqh-e-Firoz Shahi and Fatawa-e-Alam-
giri. They were known as Vakils, a term which still
applies to them. Mawardj speaks of the profession
and considers expert knowledge of the law necessary
both for the practice of Law and for the acting as
Qazi (J. R. A. S. 1910, p. 764). Mpreland thinks 1
that the profession did not exist but contemporary
authorities have referred to Vakils. 2 Ibn Batuta
who was himself a Judge in the time of Muhammad
Tughlaq (1315-1351) speaks of them (p. 194, Travels.
Lee). Badaoni refers to Rae Arzani, a Hindu Vakil
of Khan Zaman (p. 97, vol. II and p. 76, vol. II).
1 India at the death of Akbar, p. 35.
2 See (i) MS. Kalematut Tayyebat K. C. C. "Lawyers
who were employed by litigants." (2) Br. Mus. MS. Addl. 26,239
(Ruqaat) f. 20. "Hawala-e-vakil bayad kard een mard azan
jamaat nest ki hamcshah ba yak taur saluk dashta bashand."
190 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Sir Thomas Roe refers to his 'Solicitor* who perused
his plaint (Roe's Embassy. Foster, p. 260). The
petition of the East India Company was presented
by Lawyers on the original side of the Emperor's
Court. 1 The following cases were argued by Law-
1. Amin Khan vs. Manucci, Theft Case, Storia
II, p. 198.
2. East India Company vs. State, Civil Case,
Ram Chander acted as Vakil, p. 134, Islamic
3. State vs. Mir2a Beg Kotwal, Murder, Qawam
Uddin argued the Case, pp. 257-258, Khafi
4. Haji Zahid and Pirji vs. State, Civil Suit,
Muhammad Mohsin acted as Vakil, pp. 250-
251, Khafi Khan II.
5. Mst. Feeta vs. Miran, Civil Suit, p. i,Baqiat.
6. Azmatullah vs. Ghulam Muhammad, p. 5,
7. Khwajah Ahmad vs. Abi Muhammad, p. 12,
8. Nusrat Ali vs. Qaim Ali, p. 21, Baqiat.
9. Ata Husain vs. Ashiq Husan, p. 34, Baqiat.
A high standard was expected of Vakils "The
practice of the Law" said Omar, the second Caliph
of Islam, "was to be in good faith and pursued in
sincerity as a calling."
Vakils had a right of audience in Courts and were
attached to the Staff of every King and his sons. 2
1 Compare reference in Stewart, p. 541.
2 p. 874, Alamgir Namah.
PROCEDURE IN COURTS
One Vakil was given the title of "Vak^Mj^an" in
the time of Bahadur Shak^rjoy-i 71 2) (vide Bahadur
Shah Namah MS. K. C. C.) for his successful advocacy.
(Vakil-e-Sarkar) MS. 315 I. O. L.
A client could withdraw 1 the powers of his
During the reigns of Shahjahan and Aurangzeb,
lawyers were appointed to defend civil suits against
the State and to assist poor litigants with free legal
advice. They were, as I have mentioned, in the
previous chapter, known as Vakil-e-Sharai (Khafi
Khan, II, p. 249). The Vakils had to file their 'powers
of attorney' (Vakalat Namah) in all cases (see Br.
Mus. Or. 2011) and even today the form in which the
power is filed in Court is more or less the same.
Remuneration was paid by the State to the
Vakil-e-Sharai at the rate of Re. one a day (Mirat Supp.
p. 149) but it is not clear what fees were charged by
other Vakils from their clients. The order of Au-
rangzeb directing the State Vakils to give free advice
to paupers suggests that the practice of accepting
'Mahentanah' was in vogue. No receipts of pay-
ments have come to my notice, and the decrees in
Baqiat do not mention the fees of the Vakils.
There were no Bar Associations as the medieval
1 See Firoz Shahi 'In surat Umar tawanad ke Zaid ra az
vakalat ma 'zul kunad' f. 229.
192 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Government was not based on modern democratic
ideas, and there was no demand for such public
Elevation to Bench
As recorded elsewhere, Vakils could be appoint-
ed Qazis in the districts where they were practising.
A perusal of judgments in Baqiat shows that Qazi
Qaim All was a local lawyer and officiated as Qazi
for some time (p. 22), After he left the Bench he
again appeared as a lawyer in Dunia Murai vs. Mir
Shahamat (Ali Baqiat, p. 25) for the Defendant.
Vakil in other Departments
It should, however, be bome in mind that the
word 'Vakil' was also a general term applied in those
days to Agents (I. O. L. MS. 370) Shahjahan's 'dip-
lomatic' representative at the Court of Aurangzeb
was referred to as 'Vakil-e-An Hazrat', "Waqea'at-e-
Alamgir MS. 1640 (Br. Mus. f. 39). At another
place Sujan Rae in his Khulasat ut Tawarikh 1 has
used the word Vakil us Saltanat or Vakil-e-Mutalaq 2
for the Prime Minister.
There is no record of any indulgence being
granted to pauper litigants, before the time of Au-
rangzeb. In his reign the Vakils Sharai were re-
quired to give advice free to the needy and the miser-
able and according to Sarkar the Court fees, if any,
2 Compare MS. 11633 f. 31 Br. Mus.
PROCEDURE IN COURTS 193
were paid by the State. 1 As regards Court fees, this
matter is discussed below,
Suits against State
Suits against the State are encouraged by the
Shara 5 in order to keep the ruler within limits. Sultan
Firoz Tughlaq in Futuhat-e-Firoz Shahi speaks of
claims against the State which were to be filed in
Law Courts. Sher Shah's proclamation declared
that the State was not above Law and that no partia-
lity was to be shown to it in the dispensation of Jus-
tice (Elliot IV, p. 410).
In suits against the State, there was no distinc-
tion in the method of approaching a Court. The
Qazis gave judgment in the ordinary course of busi-
ness 2 . (Khafi Khan II, p. 249).
In the following cases decrees were passed
against the State:
1. Haji Zahid and Pirji vs. State. (Khafi Khan
II, p. 251.)
2. Sher Muhammad vs. State. (Collections).
3 . The State paid compensation due to a wrong
order passed by KJtian-e-Jahan as Governor
(Waqae, p. 72).
The claim of the East India Company for com-
pensation against the State for loss of property in
the port of Surat was referred for regular trial to a
Law Court by Aurangzeb (Capt. Hamilton I, pp. 227-
1 Compare Sarkar. Anecdotes, p. 178.
2 Compare Ameer Ali, Islamic Culture, 1927, p. 355.
194 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
According to Zia Barni, if a traveller died by
chance, a public enquiry was held into his death in
the presence of the Qazi by a Kotwal or the Faujdar
in the capacity of a Magistrate and the Qazi had to
sign a declaration or put his seal to it 1 that the death
was not due to foul play, but to natural causes. In
case of suspected foul play the Police were ordered
to continue the investigation. 2
Trial by Ordeal
Trial by Ordeal was prohibited under Muslim
It was a Hindu institution as noticed in Chap-
ter I. Neither the Sultans nor the Mughal Rulers
favoured it, although they did not interfere with its
use in the non-Muslim States under their protection.
Captain Hamilton who visited India in the reign of
Aurangzeb (1658-1707) has recorded a trial in South
India where the accused person was required to
put his hand in a pan of boiling oil. (Vol. I,
The earliest attempt to introduce such form of
trial was made by Sultan Jalal Uddin Khilji (1290-
1296) when Sidi Maula was prosecuted for sedition
and the Court declined to convict him on the state-
ment of one prosecution witness. Sultan Jalal Uddin
then wanted Sidi Maula to be thrown into a fire in
order to test his truthfulness, but the Sadre Jahan
1 Vide Tarikh c Mubarak Shahi, p. 18, Elliot IV.
2 Compare Ameer All's remarks in Islamic Culture, 1927,
PROCEDURE IN COURTS 195
and the other Judges refused to allow it. 1
Akbar, in 1560, again tried to encourage the
system of trial by ordeal probably in order to please
the Rajputs, but the lawyers opposed the project and
it was abandoned. 2
L,aw of Limitation
The Shara* fixes no limitation for anything.
The author of Ikhtyar (MS. Add. 22714) mentions
at several places that in criminal cases evidence was
to be produced without delay (f. n).
For summoning the evidence one month from
the date of the presentation of the suit was recom-
mended in Hidayah. 3 In the old Turkish Empire
definite periods were prescribed within which evi-
dence, oral and documentary, had to be produced.
This was not prohibited by any express rule of the
Shara' and, therefore, the Ulema agreed to it.
There are no records to show if any regulations
were issued in Medieval India limiting the time within
which suits or appeals were to be filed. The Dastu-
rul Amal MS. 2907 (I. O. L.) prepared in 1793 A. D.
by the East India Company for its Courts in South
India fixed a limitation period, but it did not show
whether the regulation was borrowed from the sys-
tem previously in force.
If two parties agreed to refer their dispute to
arbitration the Umpire or the Referee (Salis) could
1 Barni, p. 211; Badaoni I, p. 171.
2 Compare Smith (Akbar), p. 345.
3 Vide Br. Mus. Add. 22714 f. n.
196 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
give a valid decree. The arbitrator was chosen by
the parties out of Court, and his decision was binding
on them. A Qasi could review the award of an
arbitrator on a point of Law. (Kitabul Ikhtyar,
p. 59) (Hidayah, pp. 338, 343).
Misdemeanours, i.e. offences of man vs. man
were not subject to arbitration which was allowed
mostly in cases of Debt, Trade, Accounts, Commerce
and petty quarrels. (Hidayah, p. 329).
The Civil cases filed by the people in the local
Panchayets were often decided by arbitration. In
parts of India today, a readiness to accept arbitration
by a local man is still noticeable among the peasantry.
In private complaints, which were not prose-
cuted by the State, composition was generally allowed
(p. 59, Kitabul Ikhtyar). In other cases the permis-
sion of the court was necessary. The present Cri-
minal Procedure Code in India has laid down that
in certain petty criminal cases (S. 345 (i)) the parties
can compromise without the sanction of the court
while in a few more serious offences (S. 345 (2) ) either
they can not do so or can do so only with the permis-
sion of the court, but the Qazis went so far as to allow
a murderer to expiate his offence by payment of 'Qisas'
(blood fine) vide State vs. Nurjahan, Tuzuk (Shibli)
p. 30 and Ata Husain vs. Ashiq Husain and others
(1853) (Baqiat, p. 34), an obvious impossibility today.
According to the Fiqh-e-Firoz Shahi (f. 284)
the parties to a criminal case could compromise only
if the accused was in the custody of the Court lest a
PROCEDURE IN COURTS 197
compromise should be exacted from him under pres-
sure As sulh jaiz fil habsel Qazi wa la fil habsel Wall.
For the same reason no weight was given to confes-
sions made to the police. 1
(Ki tabus Sulha, Fiqh-e-Firoz Shahi).
The Shara* on the whole preferred 2 compro-
mise. In Civil cases no obstacle was put in the way
of compromise by agreement of parties (ba iqrar-e-
fareeqaen. Baqiat, p. 17) and the decree was or-
dered to be prepared in terms of such compromise
vide Gada Husain vs. Fateh Alam and others, (Baqiat,
p. 20). In British India even today, many Honorary
and other Magistrates of the "old type" actually
encourage the parties by exhortation to settle a cri-
minal prosecution by compromise. 8
Court fee and Stamps (Rusum)
It was the practice of Courts in the pre-Muslim
period to charge fees for the adjudication of disputes
proportionate to the value of the subject matter.
According to Dr. Mukerjea the fees levied were
'Chauth, Dassatra and Pachatra.' The Muslim codes
that were followed in India are silent on the point.
The chapter Kitab-e-Adabul Qasi in the Fatawa-e-
1 Vide Aurangzeb's order mentioned in the Chapter on
Evidence. This tradition of the Law Courts in Muslim India
is still retained in S. 24 of the present Indian Evidence Act.
2 Compare Sahih Muslim Kitabul Aqziah: Al Qaza fil Isr
lam, p. 20.
8 The author has actually seen posted on the Court Notice
Board a verse from some well-known philosopher praising
compromise of disputes.
198 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Alamgiri makes it discretionary for the Qazi to
charge the price of paper and ink from the Plaintiff.
The author of Tabaqat e Nasiri who was himself a
Chief Justice under Sultan Nasir Uddin Mahmud
writes that the Dadbak attached to his Court had the
duty of levying fees ranging between 10 and 15%
of the subject matter but this was abolished by Malik
Saif Uddin who w r as appointed Dadbak during his
term of office 1 as such fees were considered illegal. 2
In his Enquiry into the Mughal System, (Col.
Dow, 1 Vol. Ill, p. LVII) says that "legal fees were one-
fourth of the matter in dispute, equally levied upon
the Plaintiff and the Defendant", and that this regu-
lation "was intended to prevent vexatious Law Suits
as well as to bring to the people speedy justice."
Stewart in his History of Bengal says that fees
in the Courts of Judicature were ascertained with
accuracy and precision.
The judgments in Baqiat us Salehat and those
in the Diwani office at Hyderabad bear no stamps
and no mention of Court fee is made. Like Ben-
tham, 3 Muhammadan Jurists have always considered
the imposition of a court fee to be against public
It, however, appears to me that in Medieval times
litigation was the exception and not the rule, 4 and
that the Muslim Rulers in the beginning did not
favour the idea of charging fees from litigants. Later
1 Tabaqat e Nasiri Br. Mus. MS. Or. 1886; (Raverty), p. 788.
2 Tabaqat e Nasiri (Raverty), p. 790.
8 "Justice should be administered gratis" Bentham.
4 Vide observations of Bhara Mai in Lubbut Tawarikh-
e-Hind. Bernier, p. 236. Elliot VII, p. 172.
PROCEDURE IN COURTS 199
on as a measure to restrict the increase of litigation
a scale of payments was fixed for the expenses of
execution. Aurangzeb's Order mentioned in I. O. L.
MS. 370 (Dastur) seems to prohibit the levying of
any fee from a Plaintiff (Dar-tashkhees-e-Qazaya az
muddai). The East India Company in 1774 "on the
advice of Muslim jurists", considered the question
of abolishing certain dues which the Plaintiffs had
to pay on their plaints, but decided to retain them
as "litigation was increasing". 1
The Courts had discretionary power to award
costs in civil and criminal cases. In Ali Raza and
others vs. Muhammad Wali and others, Baqiat, p. 18,
the Court found the claim to be false (Mahez kizb)
and yet awarded no costs to the defendant.
Execution of Decrees
According to Hidayah the execution of decrees
was to be left to the Courts themselves 2 (p. 342).
The rule was that "the Qazi ought to enforce the
decree of his own or of another Court once it is
passed. He cannot refuse execution even if it is re-
pugnant to his own ideas". Execution cases were to
be expedited, any unnecessary delay "subjected the
Judge to the risk of compensating the aggrieved
party." 3 A decree passed against the State was in no
1 1. O. L. Records. 7th Report of the East India Company,
p. 329, (Committee of Secrecy, 1772-1773).
2 Vide Elliot V, p. 543. Mirat Supp. p 45.
8 Compare Dow III, p. 334.
200 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
way different in this respect from those granted
against individuals, vide Haji Zahid and Pirji vs.
State, (Khafi Khan II, pp. 250-251.)
A decree could be transferred to a subordinate
Court or officer for execution, and an executing offi-
cer could recommend amendment of the decree to
the Court passing it (Br. Mus. MS. Add. 16,859 f. 42a
and 42b). Deposit of money in Court was allowed
(Baqiat, p. 9). Imprisonment in default of payment
was permissible (Hidayah, p. 338) and was given
(Storia III, p. 263) but the debtor could be released
on producing sureties (Storia III, p. 262). Compound-
ing was allowed with creditors by the debtors. 1
The Civil Courts in some cases sent their decrees
for execution to the Amin or the Revenue officer
of the Parganah where the judgment debtor resided
Mohi Uddin vs. Qazi Pir Ali, Baqiat, p. 7. The Amin
had the assistance of a number of Mirdahas (process
servers) a term still applied to them in the United
Provinces. The position of Amin in other matters
is not the same today, but in Execution proceedings
he is still the Chief Official who executes the Court's
In cases where resistance was feared, the Courts
could call upon the Kotwals to their aid or even the
Faujdar and his subordinates (Ain II (Jarrett) p. 42).
Moreland thinks 2 that the execution processes
were "drastic 5 '. The debtor's goods were sometimes
sold, including "his house property and among Mus-
1 Compare Ishwari Prasad. Medieval India, p. 160.
2 India at the death of Akbar, p. 37.
PROCEDURE IN COURTS 2OI
lims even the family of the debtor". The Shara'
permits the enslavement of the debtor himself and
in cases of Qisas it seems to have been actually or-
dered. 1 The present Law of Execution of civil
decrees (S. 60, C. P. C.) in British India leaves the
judgment debtor a reasonable amount of his property
for his sustenance and exempts from sale the house
and implements of an agriculturist.
A convict sentenced to imprisonment was handed
over to the custody of the 'Kotwal' 2 who was respon-
sible for seeing that the sentence was carried out in
the Jail of which he was in charge. 2 Fines 3 imposed
in Ta'zir 4 cases were also realised by the Police under
the command of the Kotwal or the Shiqahdar.
In the matter of the execution of death senten-
ces, "Executioners" or "Jallads" were appointed by
the State during the Sultanate regime to behead con-
demned prisoners or to flay them alive as was ordered
sometimes in the time of Muhammad Tughlaq.
Under the Mughals death sentences had to be
confirmed by the Emperor or the Governor, and
in practice during the reigns of Akbar and Jahangir
many of the executions were carried out in the pre-
sence of the Emperor himself. Shahjahan caused
a condemned man to be bitten by a snake. But
in Aurangseb's time capital sentences were in most
iBriggsI, p. 253.
2 Compare Ain II Jarrett, p. 42; Mirat I, p. 283. Anf,
3 Mirat I, pp. 282, 283, 293.
4 See Chapter VII. In Ta'zir cases no sentence was fixed
by the Shara'.
202 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
cases commuted to imprisonment 1 and the Kotwals
were ordered to see that no criminal deserving of
death was impaled. 2 Terry says that executions were
carried out after sunset 3 (Tuzuk, p. 24) and Governors
alone were authorised to sign the death warrant. 4
Commutation and 'Enhancement of Sentence
As noticed above the King and the Governors
within their respective provinces had power to
commute or remit sentences, vide Storia III, p. 264
and Manrique II, p. 115. A woman in Gujrat was
accused of adultery and was sentenced to be stoned
to death. The Governor remitted her sentence. 5
In another case a noble woman convicted of
adultery was stoned for three days but survived and
her sentence was remitted. 6
As regards enhancement, it appears from decid-
ed cases that the Ruler alone possessed power to
enhance sentence. In State vs. Prince of Gujrat,
Mirat I, 49, the King enhanced the sentence without
being moved to do so.
There is no case extant of a Governor enhanc-
ing a sentence although within the Province he
represented the King. In State vs. Daryai Khatun,
(Storia I, p. 201), the accused woman was prosecuted
for adultery and for having sold her 19 paramours
into slavery and the Governor probably, considering
1 Compare Khafi Khan II, p. 550; Dow III, p. 397.
2 Compare Mirat I, pp. 278-280; Dow III, pp. LVII and 397.
8 Compare C. H. of India, IV, p. 182.
4 Compare Ain II, p. 37; Terry, pp. 354-356.
5 Mirat-e-Sikandari. Ref. in Briggs II, p. 352.
6 Kerr's Collection of Voyages and Travels, IX, p. 278.
PROCEDURE IN COURTS 203
the sentence of 'sangsari' (stoning), which the Qazi
might have ordinarily proposed, to be inadequate
submitted the case to the King who ordered her to
be torn to pieces by dogs. In a similar case, State vs.
Laudhan (Elliot IV, p. 464), the Governor forward-
ed the papers to the Sultan Sikander Lodi.
Appeals, Murafeah : Fiqh
Appeals could be preferred both on facts and on
Law and there is plenty of evidence that they were
preferred. 1 Sir Jadunath Sarkar's observation 2 that
there was "no provincial Court of Appeal' ' is pro-
bably based on an unsupported statement in the
Encyclopaedia of Islam, II, p. 606 that no appeal
could be filed against a Qazi's judgment. Kennedy
in his "History of the Great Moghals" says 3 "there
was always a final appeal to the Law officers at head-
quarters" (of the Province or Districts) "If parties
were not satisfied with those decisions (District
Courts or Chief Provincial Qasi) they appealed to the
Chief Qazi (Qazi-ul-Quzat) on matters of Law. 4
The appellate Courts were known as Adalatul
Allah (Br. Mus. MS. Add. 26,239 f. 4), but there does
not seem to be any specific term regularly used for Ap-
peal. Sometimes Lawyers have written Tajwiz sani
(MS. 2907 1. O. L.) or Murafeah (Fiqh-e-Firoz Shahi)
1 Compare (i) Moreland. India at the death of Akbar,
p. 36. "We read of cases where such appeals were successfully
made." (2) Al Qaza fil Islam, p. 24. (3) Dow III, pp. xxxm,
2 (i935) P- "o.
3 Vol. I, p. 308.
4 Vol. II, p. 39. Quotation from Rae Bhara Mai, a con-
204 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Mirat I,p. 283 and Aurangzeb in one of his judgments
merely says "Istighasah" (Bt. Mus. MS. Add. 26,239
f, 4). There is no word for appeal in modern Hin-
dustani, except the word Appeal itself borrowed from
The system of obtaining redress from a higher
Court, however, existed 1 and, according to Sir Henry
Elliot 2 , if any individual dissatisfied with the decision
(of the District Qazis) passed in his case appealed to
the Governor or the Qazi of the Subah (Province),
the matter was reviewed and judgment awarded
with great care and discrimination, "lest it should
be mentioned in the presence of the King that justice
had not been done."
In the following cases appeals were heard and
judgment given against the trial court:
i. Sikander Lodi's
Trial Court 9 s Judg-
2. Governor of Agra's Trial Court's Judg-
Court. ment reversed.
3. Aurangzeb's Court. Trial Court's Judg-
p. 102, Bev. I.
Storia III, p. 264.
K. C. C.
4. Jahangir's Court.
Trial Court's Judg- Storia I, pp. 174,
ment reversed. 175.
5. Shahjahan's Court. Trial Court's Judg-
6. Aurangzeb's Court. Trial Court's Judg-
Storia I, pp. 199-
1 Dow III, p. LVI.
2 Vol. VII, pp. 172-173.
PROCEDURE IN COURTS 205
The King's Bench was the final Court of Ap-
peal. In the Province the Governor's Bench was
the final Court for the Province. It heard appeals
from the Provincial Qazis' Court and from the deci-
sion of the District Qazis. Appeals from the Gover-
nor's Bench lay to the Emperor's Bench or to the
Chief Justice's Court by way of petition, vide
Ausaf All's case Baqiat, p. 28 and also Dow III,
Powers of Appellate Court
The Appellate Court could prosecute witnesses
for perjury. 1 Jahangir, finding the story of the
complainant in Muslim woman vs. Rajput, Storia I,
pp. 174-175 to be false, ordered her prosecution.
Such power was discretionary as it is today. A Court
in appeal could grant bail, 2 take additional evidence, 8
try a case afresh, 4 order a remand 5 or could decide
any issue raised during the trial in the lower Court
(Storia III, p. 264). It could either confirm or modi-
fy the order of trial court or reverse it (Fiqh; Fatawa;
Storia I, pp. 204, 174-175)-
A Court of Appeal could make a reference on any
point of Law to the Chief Justice's (Qaziul Quzat's)
1 Compare Armenian's Case. Storia HI, p. 263, also Be-
veridge I, p. 102.
2 MS. (Kalimatut Tayyebat) K. C. C. p.
8 Storia I, pp. 199-200. Beveridge I, p. 102.
* Waqaej p. 78; Br. Mus. 26, 239 Add. Appeal of Horse
6 Compare Dow III* p. xxx 4.
206 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Muslim jurists have written about second appeal,
Murafa e-saniah (Br. Mus. MS. 22714 Add.) (MS.
2907 I. O. L.) and it seems 1 that such appeals were
admitted on a point of Law, vide Baqiat, p. 28; Elliot
VII, pp. 172-3; Kennedy II, p. 39 and Lubbut Tawa-
rikh-e-Hind by Rae Bhara Mai. For example, an order
passed by a District Qazi could be challenged in
second appeal either in the Court of the Subahdar
(Governor) or the Qa2iul Quzat (Chief Justice).
No definite regulations existed about the pro-
cedure for filing appeals by aggrieved persons, and
the Appellate Courts seem to have accepted jurisdic-
tion in every dispute that was taken to them. Per-
haps the only check on the number of original cases
and appeals was the rigour with which complainants
in false cases were prosecuted 2 and the risk which
they ran of being sentenced to death, vide Muslim
woman vs. Rajput. (Storia I, pp. 174-175.) Aurang-
2eb in 1 68 1 is said to have issued certain regulations
barring civil appeals below a particular sum. 3 What
they were exactly is not clear.
There was no form prescribed for the memoran-
dum of Appeal, which usually was contained in a
petition addressed to a higher Court 4 filed by the
party aggrieved or the 'next friend'. In Aurangseb's
1 Compare Dow III, p. 334.
2 Compare Dow III, p. 334.
8 Compare Dow III, p. xxvu.
4 Compare Dow III, p. xxxm.
PROCEDURE IN COURTS ZOJ
court once an appeal was filed by two brothers of
a convicted person. Sarkar I, p. 174.
The Appeal abated if the appellant died, vide
Kotwal Mirza Beg vs. State, Khafi Khan II, p. 257.
Copies of the decisions of Appellate Courts were
sent to subordinate Courts, vide Aurangzeb's order
in horse dealer's appeal (Waqae, p. 72 and MS. 370
I. O. L.). There is no record extant of the Sultanate
period. Presumably the practice must have existed
then as well.
Courts established at a higher unit of adminis-
tration could call for the record of a case from the
file of a Court of inferior grade for inspection and
pass proper orders suo motu or on application. Jahan-
gir, of his own accord, interfered in a case where a
Rajput, convicted of rape, was being carried by the
side of his palace walls to a place of execution (Storia
I, p. 175).
Aurangzeb's restrictions on tight of appeal in
certain civil cases in which the order of the Trial
Court became final, as referred to above, may have
encouraged the defeated party to challenge the deci-
sion of the Trial Court on legal grounds as occurred
in Ausaf Ali's case, Baqiat, p. 28, when the matter was
referred to a "Bench."
Reference (Rujoo') 1 could always be made by
Courts to their Courts of Appeal and they could
accept it or reject it (An havalah batil kunad. Fiqh-
1 Compare MS. 2907 I. O. L.
208 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
e-Firoz Shahi). According to another Muslim ju-
rist a Qazi could ask the opinion of learned men in
a case (Al qaza fil Islam, p. 9) and the advantage of
this rule seems to have been taken by several Courts 1
in Muslim India.
Review of judgment : (Tajwi^ Sani)
In theory a Qazi had unlimited powers to re-
view his order. If it was against the Sacred Law, it
was invalid in any case (Fatawa). According to
Hidayah (p. 342) a judgment could be reviewed
only when there was a patent illegality and it was
against the Quran.
A Qazi could review his predecessor's judgment.
Both civil and criminal judgments could be re-
viewed and the modern distinction 2 of curtailing a
Criminal Court's power in this respect did not exist.
Arrest^ Custody and Bail : (Kitabul Kifalat.
Shahi ; Fatawa).
Arrest (Hirasat) of an accused in "cognisable"
cases \vhich were termed Hadd and Ta^ir, \vas neces-
sary on the production of prima facie evidence (MS.
Add. 22714) and bail or security (Zamanat a word
still in use) was discouraged. 3 In theory, since the
whole Muslim community was responsible for the
administration of justice, every Muslim could arrest
a person who committed a "cognisable" crime,
1 State vs. Laudhan, Elliot IV, p. 464; State vs. Sidi Maula,
Barni, p. 211; State vs. Qa2i Hammad, Mirat Supp. 45.
2 See Ss. 367-369. Cr. P. C.
8 Br. Mus. Add. 22714 f. 6
PROCEDURE IN COURTS 209
in his sight. The arrest of Sultan Raziah's murderer
by a Hindu indicates that other subjects of the State
were in the same position.
All Criminal Courts had power to order arrest
within their jurisdiction, of people committing "cog-
nisable" offences (Waqae, p. 40).
The Kotwal, who was generally in charge of
arrests, had to report cases of arrest to the Qa2i and
to obtain his order whether the arrested person was
to be prosecuted or released (Mirat I, p. 283).
The Faujdar had power to arrest persons but
he had to submit a report to the Governor for orders
as to further proceedings (Mirat I, p. 282).
The prisoner could, in every case, ask for bail.
In a theft case against an accused a Hindu offered
himself as surety and it was accepted (Storia II, p.
199). In another case bail was refused by the Qazi
but was allowed in Appeal by the Emperor (MS.
Kalematut Tayyebat K. C. C). In the following
cases bail was also granted:
1. Murder Case. State vs. Deshmukh. (Collections)
2. Theft Case. State vs. townmen. (Collections)
3. Assault Case. State vs. Baqabillah. (Tazkiratul Ule-
ma, p. 53).
It w r as refused in State vs. Lakshman Banjara
(Collections) and State vs. Madari Faqir (Collections).
Aurangzeb laid emphasis on prima facie evidence
before arrest (Mirat I, p. 278) and warned Courts
against keeping a man under trial for a term longer
210 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
than was strictly necessary. A Shiqahdar (Police
Officer) was once convicted of the offence of wrongful
confinement and sentenced to a fine of two hundred
rupees (Manrique I, p. 425). The Qazi of the place,
like the present Sessions Judge, was empowered to
hear petitions for release from prisoners confined
"upon any legal claim" (Mirat I, pp. 278-282).
Appeal could be filed to the Qazi-e-Subah, if
bail was refused by an inferior Qazi (MS. E. 380
I. O. L.) or to the Emperor (MS. 370 I. O. L.).In
"Cognisable" cases bail as a rule was not allowed 1
(la yujawizul kifalat fil Qisas, Hidayah).
Security for presence in Court
A security offered for presence in Court was
accepted if reliable (mo'tabar) vide State vs. Genoese.
Storia I, p. 265; State vs. Manucci, Storia II,
Arrest for non-payment of debts depended
mostly on the exercise of private rights. It was not
obligatory 2 for the Qazi to send the debtor to prison
for non-payment of debt, unless he defaulted in
making payment within the time fixed by the Court
or in producing satisfactory surety, vide Storia III,
By the strict letter of the Law a debtor could be
sold into slavery.
1 MS. Add. 22714 f. 6.
2 Compare Hidayah, p. 338.
PROCEDURE IN COURTS 211
Investigation and search
Police officers in general were required to in-
vestigate crimes (State vs. Khwajah Ahmad Afif,
p. 506). Enquiry into offences relating to religion
and morality were conducted by Mohtasibs either by
themselves or in accordance with instructions issued
by Courts or the Sadr.
The Police had power to search the house or
person of a suspect in the same way as a Police officer
proceeds US. 96-103 of the Criminal Procedure Code
in British India. A Qazi could himself search the
house of an accused vide Storia III, p. 123. The
person who obstructed a house search had to prove
justification to avoid punishment. If he succeeded
in proving his bona fide resistance the Police officer
was liable for the wrong done to him vide Khafi
Khan II, p. 257.
A Police Officer could enter a house by force
for purposes of search or arrest provided he had
reasonable grounds for suspicion. 1 (Manrique II,
pp. no, 137).
1 Compare Al Qaza fil Islam; pp. 27-28.
RULES OF EVIDENCE
(Kitab ush Shahadat: Fiqh-e-Firoz Shahi).
Principles of Evidence
The Muslim Law of evidence is given in Fiqh-e-
Firoz Shahi and Fatawa-e-Alamgiri, the codes that
regulated procedure in Indian Courts. Baillie has,
in his Digest (pp. 759-762) translated portions of the
Fata\va-e-Alamgiri and I give below the main prin-
ciples as interpreted by Muslim Judges in medieval
The Hanafi Law classifies evidence in the follow-
ing order of merit:
1. Tawatur full corroboration.
2. Ehad testimony of a single individual.
3. Iqrar admission, including confession.
The Muslim jurists have unanimously preferred
Tawatur to any other kind of evidence. The insis-
tence on corroboration is probably based on an
injunction in the Quran "Ya ayyuhallazin amanu
koonu qawwameen shuhdae lil qist". (O Believers
shirk not the duty of giving evidence that is true
for the sake of justice. Ch. 4. 135).
As pointed out by the author of Hujjatul Bali-
ghah it is incumbent on a claimant to bring evidence
in his support. 1
1 Compare Al Qaza fil Islam, p. 31.
RULES OF EVIDENCE 213
Competency of Witnesses
According to Law all those who believe in
God and respect the Book of Revelation, namely the
Quran, could be competent witnesses "Udul". 1 A
Qazi was, in theory, expected to keep himself inform-
ed about truthful persons within his jurisdiction.
The 'believers' could not be rejected as un-
truthful unless proved to be so. The phrase "Mus-
sulman ho kar jhut bolte ho" (Do you, the Mussul-
man that you are, speak falsely), so commonly used
in India finds its origin in the Quran which insists
upon Muslims speaking the truth in every case 2 as
'liars are doomed' Laanat Ullah alal kazebin. It
seems to follow that in a Muslim Court evidence of
a Muslim could be preferred 3 to that of a non-Mus-
lim who "does not respect the Book of Revelation. 5 ' 4
But in State vs. Islam Khan, a Treason case, vide
Tabaqat e Akbari and Elliot IV. pp. 26-27, the rule
was not observed and the solitary statement of a non-
Muslim was accepted as sufficient for the conviction of
the Muslim accused. The evidence of 'non-believers'
again was relied upon by the Judges against 'believers'
in the case of wounding the religious feelings of
Hindus mentioned in Manrique II, pp. ii2-ii5. 6
1 Compare J. R. A. S. 1910, p. 794.
2 Compare (i) Hklayah, p. 353; (2) Baillie (L).
3 Hidayah, p. 362. Baillie, p. (L)
The testimony of a non-Muslim was not altogether to be
4 Compare Hidayah, p. 360.
5 The admission of one of the accused could not under
the law be the sole basis of conviction, (see p. 218) but it was
in this case corroborated by one non-Muslim witness.
214 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
In Sultan Raziah's murder case referred to in
Elliot HI, p. 593 an extra-judicial confession made
by the Muslim accused in the hearing of a Hindu
shopkeeper was accepted as admissible.
Women could be competent witnesses but two
women at least were required to corroborate a fact
for which the testimony of one man was sufficient. 1
In cases where women possessed special know-
ledge, the testimony of one woman was relevant. 2
The father, wife, grandfather and son of a man were
not competent witnesses in his favour (Fatawa-e-
Alamgiri, Vol. III. Kitab ush Shahadat; Hidayah
p. 360), but in cases where relationship was to be
proved their statements were accepted (vide Breach
of promise case of Shahjahan's Court, p. 21, Rahbar-e-
Daccan, 1341 F.).
Opinions of experts were admissible (Al-Qaza
fil Islam, pp. 54-55). Convicted persons, gamblers,
habitual liars or those previously discredited as
witnesses were assumed to be unreliable. 3
Direct evidence was preferable to hearsay 4
which, however, w^as not altogether excluded. It
was admitted somewhat freely in cases before the
Faujdar where the accused persons' previous records
and their likelihood to disturb the peace were in
question. The Court could take judicial notice of
1 Compare Baillie, p. (L).
2 Compare Hidayah, p. 354.
8 Al Qaza fil Islam, pp. 46-52.
4 Baillie, p. XLIX.
RULES OF EVIDENCE 215
facts too well known to require proof. For a con-
viction of theft the evidence had to be specially
convincing. 1 This was probably due to the fact
that the punishment for theft was cutting off the
'Qarinah' or circumstantial evidence could be
accepted, if it was of a conclusive (Qate) nature. 2
[n State vs. Madari Faqir (Collections) the accused
*ras acquitted of the offence of theft as his merely
running out of the house at night when the inmates
^ere away, was not considered sufficient to prove his
>uilt. Indirect evidence could be tendered of offen-
ds like adultery, (MS. Add. 22714 f. 63) as was held
n State vs. Muslim Trade Commissioner referred
:o in Monserrate, p. 210. In a case mentioned in
Storia I, p. 203, a Hindu scribe sued a Mughal soldier
: or enticing away his wife. The wife denied that
he complainant was her husband, but the Court
[Shahjahan) not satisfied with her statement, suddenly
>rdered her to fill the Court inkpot with ink. The
voman did the work most dexterously and the Court
included that she was the wife of the Hindu scribe
md granted him a decree and the Mughal soldier
vas expelled from service. In another civil suit by
bur merchants of Delhi Shahjahan in giving his
udgment in appeal relied mainly on circumstantial
1 Compare Marshall's remarks in his Diary, p. 391.
2 Compare Al Qaza fil Islam, p. 75; Judgment of Sikander,
Jeveridge I, p. 102.
21 6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
evidence to arrive at the conclusion. 1
Oral and Documentary Evidence
Documents duly executed and books kept in the
ordinary course of business were accepted in evi-
dence. 2 But oral evidence was preferred 3 to docu-
mentary. If deeds alone were produced the Courts
were to insist upon examining the party which pro-
duced them. In the case mentioned in Storia III,
p. 263, oral evidence was accepted as a good proof
of a debt and documents, if any, were not called for.
Nowadays the Indian Civil Judge adopts the precisely
contrary process of regarding parole evidence with
distrust, unless it is supported by documentary evi-
Legally, however, documentary evidence was
perfectly relevant (Fatawa Vol. Ill, pp. 534-535) and
there is an instance of a written affidavit being accept-
ed in Manucci vs. Portuguese, Storia III, p. 128. A
statement made in a criminal case was admitted in a
civil suit against the person who made it, vide Storia
I, p. 200.
(Iqrar. Fatawa Vol. IV. Kitabul Iqrar).
Decrees could be given on admission (Iqrar)
provided it was unconditional. Dr. Vesey-Fitzge-
1 Storia I, p. 204. Also compare State vs. Khwajah Ahmad
Afif, p. 507.
2 Compare Fatawa III, p. 534. Compare Ss. 32, 34, 35 In-
dian Evidence Act.
3 Compare Al Qaza fil Islam, p. 80. Such was the practice
of the Early Caliphs.
RULES OF EVIDENCE 21 7
raid, author of Muhammadan Law, suggests that
acknowledgment fills a large place in the (Mus-
lim) Law of evidence and even makes in-roads
on the substantive law (p. 28). He has based
his statement on the opinion expressed by the Tur-
kish Shaikhul Islam. The importance of admission
is undoubtedly great in cases of declarations about
dower (mehr) paternity and was so generally in
civil cases in India. In criminal cases a confession
was admissible in evidence (State vs. Khwajah Ah-
mad. Afif, p. 508). In State vs. Mian Malik the
accused made a confession and it was relied on 1
(Elliot IV, p. 454). In State vs. Moqarrab Khan
(Tuzuk, p. 83) it was also accepted. In another case
of Treason confessions made by two out of four
accused and implicating both the makers and their
co-accused were accepted by Jahangir (Tuzuk, p. 28)
against the makers only. These two men were
executed and the cases of the other two were re-
manded for further enquiry.
This shows that the confession of one co-accused
was not conclusive against the other co-accused,
though it might be admissible. 2
It seems, however, that the courts were not
bound to accept confessions, and, indeed, that they
w^ere enjoined to look for further evidence. A
confession made under threat or inducement was
inadmissible (MS. Add. 22714 f. 33). Aurangzeb
in remanding 3 a complaint case said:
1 Compare Kennedy I, p. no.
2 See State vs. Khwajah Ahmad Afif, p. 507.
3 Waqae, p. 88 (I. O. L.)
21 8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
"Qazi wa Amin tahqeeqat mudaqqaq o muta'sseb
bayad kard ke bayak Iqtar o Inkar kar tamam na kunad".
(MS. Raqaem e Keram K. C. C.) (MS. Add.
26,239 Br. Mus. f. 16).
(The Qasi and the Amin should make thorough
enquiries and not decide the case on a mere
admission or denial).
The ruling apparently applies both to civil
and criminal cases. In cases of theft and change
of religion a confession alone was not to be
acted upon (Kitabul Ikhtyar MS. Add. 22714
S. 32, 33). This presumably was laid down judi-
cially at some time or other. A confession made
by a Vakil (Lawyer) on behalf of his client was not
admissible on the ground of Istehsan, though it
could be tendered (MS. Add. 22714 f. 8). If an
accused confessed his guilt and then retracted and
the case was proved, the sentence was to be less
severe (Kitabul Ikhtyar Add. MS. 22714 S. 32, 33,
112, 113). No other authority has been discovered
to support this curious statement.
The value attached to admission (Iqrar) seems
to survive in the tendency of assessors in an Indian
Sessions Court to pronounce an accused person
guilty, whenever a hinc of a confession appears from
the evidence or from gossip outside the Court, how-
ever, inadmissible legally such confession may be.
The tendency to rely implicitly on admissions
was noticed in the Fatawa-e-Alamgiri 1 and was de-
precated especially in cases of theft.
1 Cal. Vol. IV. pp. 213-312. Luck. Ill, p. 410.
RULES OF EVIDENCE 219
Estoppel and JLesjudicata
The principle of estoppel was recognised. A
party could prove conduct by his adversary which
precluded him from raising any particular claim or
defence. In Azmatullah and M. Muqim vs. Ghulam
Muhammad and others, Baqiat, p. 5 the Court held
that the claim had already been decided by a com-
petent court and that since the decision had not been
appealed against no further suit on the same issues
could be brought by the plaintiff.
Method of Recording Evidence
The party producing a witness examined him
first (Izhar) 1 and then the other side could cross-
examine him (Jirah). The statements of witnesses
were reduced to writing (Muzhir. Baillie, p. 764)
by the 'Katibs' of the Court. The presiding officer
was at liberty to ask any question he pleased (Kitabul
Ikhtyar MS. f. 65) and as laid down in Ain I (Text)
p. 283 he was required himself to make thorough
enquiries by examination and cross-examination of
each witness separately (juda juda. Ain Text I, p.
283). The depositions were read over to the wit-
nesses by another official Sahebul Majalis. 2
It is suggested in Ikhtyar (MS. Add. 22714 f. n)
that in criminal cases witnesses must be produced
within one month of the filing of the complaint.
Long adjournments were not favoured.
1 The word 'Izhar' is still used in Indian Courts. Compare
Fatawa, Kitab Adabul Qazi.
2 Fatawa. Baillie, p. 766.
220 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
The Court had to give its decision on the evi-
dence which had been put before it and not wait in-
definitely for further evidence, vide case mentioned
in Storia III, p. 264.
Courts had to see that the identification of pro-
perty and of the accused by witnesses, was exact
and explicit. Where witnesses differed the accused
was entitled to the benefit of the doubt (Hidayah
Book XXI Ch. Ill and Kitabul Ikhtyar MS. Add.
22714 f. 8). In allowing an appeal against a con-
viction for rape Jahangir dwelt on the fact that the
identification of the accused should not be ignored
in proper cases (Storia I, p. 174).
Evidence on Commission
Evidence could be taken on commission if the
Qazi of that place could certify that the evidence was
taken in his presence (Hidayah, pp. 3404-31) (Fiqh-e-
Firoz Shahi f. 210). If it was not taken in his pre-
sence, it was not admissible (Fiqh f. 22 j) 1 . In Bibi
Zadi vs. Mir Wali, Baqiat, p. 16, the Qazi recording
such evidence obtained the signatures of all the
persons interested in the case at the bottom of the
Number of witnesses
No number was fixed, but four witnesses were
required generally in cases of adultery 2 because of
the impossibility of securing genuine eye witnesses,
1 Compare Ss. 503, 507, 508, Cr. P. C. in Br. India.
2 Compare Hidayah, p. 353. (MS. Add. 22714 ff. 60, 61).
RULES OF EVIDENCE 221
and three for a claim to be adjudged insolvent. 1 On
an average two "Adil" or truthful witnesses were
necessary to support a suit. 2 The matter seems to
have been discretionary with the Courts, and the
Quran has not prescribed any limit. 3 In State vs.
'Vizir' Elphinstone (1857), P- 35^ the statement
of one Hindu witness was relied upon for
a conviction of Treason. In a case of attempt to
murder referred to in Briggs IV, p. 517, the evidence
of one witness alone was accepted as sufficient,
while in State vs. Sidi Maula (referred to in Barni,
p. 211, Badaoni I, p. 171) it was rejected.
Oaths were administered to witnesses (Ain Vol.
II, pp. 37, 41). The Muslims said 'by God' 4 (Baillie
748), the Hindus swore on the cow, and the Chris-
tians on the Bible. 5 Ovington, an English traveller,
who attended several courts in Muslim India says,
" In controversies and decisions of right oaths are
administered and made use of here as well as in Chris-
In Nusrat Ali and others vs. Qaim Ali, Baqiat,
p. 21, the plaintiffs refused to take an oath and their
suit was dismissed.
1 Al Qaza fil Islam, p. 60.
2 Compare Abu Daud Sajistani. Kitabul Aqziah; Quran:
3 Compare Al Qaza fil Islam, p. 61.
4 Storia I, p. 107.
5 Compare Storia III, p. 128. "To swear upon the Holy
6 A Voyage to Surat 1689. p. 138.
222 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
In another case, Mohi Uddin vs. Anbart Baqiat,
p. 9 the patties were allowed to go to a mosque where
the plaintiff was to take the oath. Anbart, defendant,
was a Hindu, but he agreed to this procedure.
TENDENCIES IN CRIMINAL
Mawardi defines 1 Criminal Law as compelling
those who would do each other wrong, to "mutual
justice and restraining litigants from repudiating
claim by inspiring fear and awe in them/' The au-
thor of Fathul Qadeer 2 further classifies offences as
those which are against God or public rights (Huquq-
ullah) and those that violate private rights (Huququl
Ibad). The ruler owes a duty first towards God
to purge this world from sin, and then to his subject
who suffers in consequence of the act complained
of, but whose suffering is of secondary importance
compared with the injury done to God's authority.
In Islam the State belongs to God, and, therefore, a
violation of public rights is an offence against God,
while infringement of a private right is an offence
mainly against the individual concerned.
Three kinds of Punishment
Every violation of a public or a private right
is punishable in three ways. The first is c Hadd'
1 Compare J. R. A. S. 1911, p. 635.
2 Compare Kitabul Ikhtyar, p. 5. (Azamgarh).
224 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
wherein the punishment (uqubat) is fixed 1 by the
Shara'. It is applicable in the following cases:
1. Theft (Sarqah) or robbery (Qata utturq).
2. Whoredom. (Zina).
3. Apostasy. (Irtidad).
4. Drunkenness. (Shurb).
5. Defamation, (Itteham-e-Zina).
The object of 'Hadd' is to clean the world of
sinful men. It is applicable to Muslims and non-
Muslims alike. The earlier Muslim jurists were
of the opinion that in every case the fixed punishment
must be inflicted. For instance the cutting off of the
offender's hand ordered by a trial court in a theft
case was changed by an Appellate court to imprison-
ment, but the decision was not approved of in the
Fiqh-e-Firoz Shahi, although during the reign of Firoz
Tughlaq (1351-1388) the mutilating of criminals
was expressly forbidden (Briggs I, p. 462). Aurang-
zeb at a later date (1672) definitely declared in his Far-
man 2 that the sentence of cutting off a hand need
not be awarded in the first instance, if the circums-
tances permitted, and at any rate it was not to be
inflicted upon lunatics, infirm persons, and minors. 3
It was the duty of the State to prosecute all cases
punishable by 'Hadd' (ijrae hadd-e-sharai har che
lazim ayad). The proceedings usually started at
the instance of the Police, 4 though private persons
too had a right to institute them by complaint, vide a
1 Compare MS. Acid. 22714 ff. 3, 4.
2 Br. Mus. MS. Add. 6580. Mirat I, p. 278.
8 Compare Br. Mus. MS. Add. 22714 ff. 3, 4.
4 Mirat I, pp. 282, 283.
TENDENCIES IN CRIMINAL ADMINISTRATION 225
Kashmiri Alim vs. Mir Murtaza, Khafi Khan II, p. 565;
Muhammad Amin Khan vs. Manucci, Storia II, p. 197.
The second form of punishment is Ta'zir which
literally means prohibition. According to Nihayah
it applied to cases not covered by 'Hadd.' 1
In Hadd the sentence was fixed and unalterable,
while in Ta'zir the courts could regulate it in any
suitable manner, and were free to invent new punish-
ments such as cutting out the tongue, impalement,
etc. The matter was discretionary or one which
could be regulated by the Sovereign. Aurangzeb
accordingly issued a comprehensive Farman 2 de-
fining such cases. 3
Under Ta'zir came counterfeiting coins, hurt,
gambling, minor theft cases, etc. The administration
of Ta'zir placed a special responsibility on the Ruler
and the Judge. During the medieval period no effort
was made to standardise punishment for such offences.
No limit was fixed 4 for imprisonment. Aurang2eb
finding that in certain cases convicts were kept too
long in prison, issued 5 orders that the Qazis and the
Governors were to visit 6 the jails regularly and hold
"jail deliveries. " Some courts preferred to impose
fines. This practice was discouraged by Aurangzeb 7
1 Compare MS. Addl. 22714 f. 4.
2 Mirat I, pp. 277-282.
3 It may be interesting to notice that the title given to the
Hindustani translation of the Indian Penal Code is Ta'zirat-e-
4 Compare Ibn Hasan, p. 336.
5 Mirat I, pp. 277-282.
8 MS. Add. 6580 f. io4b. The duty of inspecting the jail
in British India is still imposed upon Magistrates and Judges.
7 Mirat I, p. 293.
226 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
(Chun Ta'zir bilmal Shara'n jaiz nest), although fine
in the form of 'Dyath* compensation was allowed
(Hidayah, p. 660).
The third form of sentence covered homicide
cases. It was called Qisas or blood fine and may
be compared with the Weregild of the contemporary
English period. Qisas was payable by the man who
killed another, unless that other were himself under
sentence of Law to die. 1 In State vs. Empress Nur-
jahan Tuzuk-e-Jahangiri Shibli, p. 30 the complainant
accepted compensation, but in State vs. Prince of
Gujrat, Mirat I, p. 49 the King's Court in Revision
disapproved of the award of mere compensation and
enhanced the sentence to death. Both these cases
were prosecuted on a private complaint. It \vould
thus appear that the courts had a discretion to allow
homicide cases to be compounded 2 and that the
State did not consider it part of its duty to prosecute
them. Murder and homicide seem to have been con-
sidered essentially private grievances. 3 It was held
by Jurists that in Qisas "the right of God's creatures
prevailed" and the State came in only, if desired to do
so by a complaint of the aggrieved party.
In 'Hadd' offences the aggrieved party could
not be awarded compensation. In both Hadd and
Qisas cases the accused person was kept in custody
during trial and was not allowed bail.
!MS. Add. 22714 f. 5.
2 See State vs. Khwajah Ahmad. Afif, p. 508.
3 (Dar qisas haqqul abd ghalibast). MS. Add. 22714 f. 5.
TENDENCIES IN CRIMINAL ADMINISTRATION 227
Treason (ghadr) was looked upon as an offence
against God and religion. For this reason prosecu-
tions for treason were in most cases launched in the
"Canon Law" courts, vide State vs. Islam Khan,
Elliot IV, p. 27, State vs. Sidi Maula, Beveridge I,
pp. 75-76. In the majority of these cases the punish-
ment inflicted was death, 1 unless the ruler chose to
exercise his prerogative of mercy. 2 No distinction
was made between Muslims and non-Muslims 3 in
awarding sentence or between highly placed persons
and ordinary subjects. 4 In State vs. Qazi Jalal Uddin
Afghani and others (Ibn Batuta, p. 146), one of the
persons accused of treason was Shah Haidari, a holy
man of some reputation. The only evidence against
him was that he had given the principal accused
Qasi Jalal Uddin a cap to wear as a Talisman. He
was nevertheless convicted of abetment and put to
As always happens in any State, special measures
were sometimes necessary to deal with revolts or
internal disturbances. The orders issued for this
purpose to the Military by Indian Muslim rulers were
referred by the Lawyers to the doctrine of Darul
Harb which meant a temporary suspension of the
guarantees enjoyed by the subjects in a State for as
1 Compare Ibn Batuta, pp. 146-147, 149.
2 Compare Dow III, p. LVIII; State vs. Rae Rae Singh.
3 Compare Briggs HI, p. 96; Anecdotes by Sarkar, p. 141.
4 Compare Brlggs III, pp. 96, 265; Anecdotes (Sarkar), p.
141. Ibn Batuta, pp. 146-148.
223 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
long as the conditions in the land required. The
doctrine according to Muslim jurists 1 was to be
applied usually against an alien State or people for the
protection of religion, when a 'Jehad' or Holy War
could be declared. In stating the Law on the sub-
ject to Muhammad Tughlaq (1325-1351) Qazi Zia
Uddin said 2 that such a step could be taken firstly
against those who were alleged to be in revolt or
from whom the King feared a revolt and there was
proof of their intentions (ghadar-e- O tahqiq shawad);
secondly against those who were openly in rebellion or
those who were leading it (sarghana-e-bagha shawad)
or helping it (madad wa maavinat kunad); and thirdly
against those who disobeyed the just orders of the
Sultan which meant that they were disobeying God, 3
but proof of damage to the State was necessary
(Zyan-e-mulk shart ast).
It appears that most rulers treated all kinds of
rebels as aliens, and held 4 that any organised opposi-
tion from the people was sufficient to justify their
assumption of emergency powers. They regarded
disobedience to an order issued by them as disobedi-
ence to God (Irtikabe khilaf an ke dar haqiqat khilaf-
e-hukme khudast) 5 and damage to the State (Zyane
1 Compare Fatawa. Baillie, p. 173.
2 Barni, pp. 510-512.
3 Barni, p. 510.
4 Compare Muhammad Tughlaq's reply to Zia Uddin Bar-
ni. Barni, p. 511. Compare prosecution of Khan Muhammad.
Briggs II, p. 346.
5 Compare Mirat-e-Ahmadi I, p. 251.
Muhammad Tughlaq's token currency has the following
superscription l ^xyt^lbt & ^tloLJf^lbt ^ man ata* us Sultan
Faqad ata* ur Rahman.
TENDENCIES IN CRIMINAL ADMINISTRATION 229
mulk) was accordingly presumed. Some Sultans
went further like Meeran Husain of Ahmadnagar
who fearing an intrigue put fifteen Princes of his
family to death in one day (Briggs III, pp. 270-271) or
like another King who ordered the body of the Prime
Minister to be hewn into pieces on a mere suspicion
(Briggs HI, p. 274).
Firoz Tughlaq (1351-1388), however, was more
cautious 1 than others and Aurangzeb in an order 2
issued to one of his governors seems to have res-
tricted the use of such extraordinary powers to
cases of active rebellion or riots (fasad).
Persons who were imprisoned for offences of
rioting by Governors could not be released by the
Qazis as a result of their jail inspections. 3
Prosecution in general by State
The Shara' allowed the Ruler authority to
punish grave offences for the ends of justice, although
the injured party might "waive his private claim to
compensation or redress." 4 In offences of riots,
homicide, theft, and adultery the Qazis had power to
order a Police investigation or to make enquiries them-
selves, 6 vide Storia III, p. 123. The State was regarded
as responsible for taking proceedings against the
offender, when the alleged offence was contrary to
iBarni, p. 573.
2 Mirat I, p. 336. Compare Alamgir Namah, p. 1079;
Khafi Khan II, p. 550; Dow III, p. LVIII.
3 MS. 6580 f. nib.
4 See Mst. Sebha vs. Moynoola. Administration of Justice
of Muslim Law by Dr. M. U. S. Jung, p. 102.
6 Compare Dow III, p. LVII.
Z}0 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
morality as understood by the Law of Islam (ahkame
shara* bar anha jari sazand).
Contempt of Court Proceedings
Interference with the disposal of judicial work
was a serious offence, punishable with much greater
severity than the present Law in India would permit.
The Qazi of Agra once sentenced a man to death for
abusing the Court. The accused was saved from
the gallows by the Governor who refused to confirm
the sentence (Storia III, p. 264).
In Sadiq vs. Shakur a governor was dismissed
for delaying to send an accused summoned by the
Qazi-e-Subah (Aurangzeb V, pp. 421-422).
Prince Dara was severely censured by the Em-
peror, Shahjahan, for taking an accused forcibly out
of court (Storia I, p. 265).
Prince Kam Bux, a favourite son of Aurangzeb,
was sent to prison for assaulting an officer of the court
(KhafiKhanll, p. 437).
In State vs. Yaqub and Nairn, Briggs IV. p. 5 19
the accused, who were powerful nobles of the Em-
pire, one of them an ambassador at a foreign court,
had procured the murder of a Qazi, because he had
given a judgment unfavourable to them. They
were executed in public with great brutality by the
order of Akbar.
The Court, where 'contempt' was committed,
could either take action itself and punish the offender
under Ta'zir (Storia III, p. 264) or report the matter
to the Governor or the Emperor, vide Sadiq vs. Sha-
kur (Aurangzeb V, pp. 421-422).
TENDENCIES IN CRIMINAL ADMINISTRATION 23!
Similarly assaults on public servants were pu-
nished with severity, vide State vs. Yusuf, Briggs IV,
p. 517; also Wazir's case Ibn Batuta, pp. 146-147 and
State vs. Khorasani, Shams Siraj Afif, pp. 496, 497.
PREVENTION OF CRIMES
Punishment in general
The severity of punishment (syasat) for criminal
offences was a companion feature to medieval admi-
nistration. Sporadic outbreaks of crime such as
robbery and murder and the consequent discontent
among the subjects tended to increase the uneasi-
ness of medieval rulers and to induce them in many
cases to inflict penalties wholly opposed to the spirit,
if not the letter, of the Shara'. 1 Monserrate who
claims personal experience of executions writes that
the death sentence was usually passed in offences of
murder, treason, theft from Royal Treasury, adul-
tery by a married person and oppression of Ryots
by officials 2 . According to the author of Tarikh-e-
Firoz Shahi the prevailing notion among some of
the Sultans was that a ruler could not enforce his
authority without executing 'rebellious' persons. 8 It
is said of Muhammad Tughlaq (1325-1351) that he
enquired of Zia Uddin Barni in what cases capital
punishment could be awarded, and that the latter
1 See Quran. "Allah ya murukum bil adl wal ehsan." Any
injury done to the family of the accused was distinctly against
the Shara', Badaoni I, p. 239; Compare Khafi Khan II, p. 550
"az anke bar pas ryaet-e-Shara* syasat ra kar nami farmudand."
Commentary, pp. 85-87, 209-210. Fryer I, p. 244,
8 Barni, pp. 550-551.
PREVENTION OF CRIMES 233
said, 1 "In three cases only according to Quran.
Firstly apostasy, secondly shedding of innocent blood
and thirdly adultery." Muhammad Tughlaq rep-
lied, "All this may be very true, but mankind has
become much worse since those laws were made."
It was Muhammad Tughlaq again who flayed alive
a man convicted of Treason and exhibited his corpse
in public while the Executioner was ordered to pro-
claim, "Thus shall all traitors to their King perish." 2
At another place Sultan Balban ordered a Governor
convicted of manslaughter to be given over as a
slave to the complainant (State vs. Haibat Khan,
Briggs I, p. 253). In the more advanced times of
the Mughal Emperor, Akbar, (1558-1605) we hear
of an officer of the rank of Chief Trade Commissioner
being strangled to death and gibbetted for adultery
(Akbar Namah III, pp. 390-391). Akbar himself threw
Adham Khan, who had committed a murder, down
the battlements of his Fort. 3 Jahangir took interest
in seeing condemned prisoners torn to pieces by
elephants. 4 It was also in the reign of Jahangir that
limb after limb of a dacoit, with seven previous con-
victions, was torn till he died. Shahjahan felt satis-
faction in administering poison to a corrupt kotwal
and in seeing him breathing his last in open court.
(Storia I, p. 197).
In some cases when the rulers felt they had
1 Briggs I, p. 436.
2 Beveridge I, p. 90.
8 Hawkins and Purcha's Pilgrims, Vol. I, p. zzo; also paint-
ing from Akbar Namah Indian Section of Albert and Victoria
Museum, South Kensington.
* Elliot III, p, 618; Compare Elliot VI, pp. 503-504.
234 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
enough of "Syasat," they prohibited 1 mutilation of
hands and resorted to wholesale banishment. In
one of his regulations forbidding the mutilation of
limbs, Firoz Tughlaq proclaimed (Briggs I, pp. 463-
"I will on all occasions cause to be banished
from the realm persons convicted of the fol-
1. Those who profess atheism.
2. Who maintain schools of vice.
3. All public servants convicted of corrup-
tion or of receiving bribes/ 5
No distinction was made between Hindus and
Muslims in the matter of punishment. Even in
Canon Law cases or offences against religion the same
severity was show r n to the Muslims as to any other
non-Muslim, vide State vs. Sarmad, State vs. Portu-
guese Friar, (Sarkar III, p. 113) and State vs. Bindra-
bund, Stewart, p. 410. Ali Muhammad Khan men-
tions 2 a case where Qasi Hammad, a man celebrated
for his piety and a Qazi-e-Subah, was sentenced to
death for arrogating to himself attributes of Divinity.
One of the Judges on the Bench was Qazi Mian ji, the
teacher and a close friend of the accused.
Aurangzeb who made a special study of the
Law 3 , however, showed distinct reluctance 4 in con-
1 Firoz Tughlaq. Briggs I, p. 462.
2 Supp. pp. 45-46.
8 Alamgir Namah, pp. 1074, 1085-1092. Ovington, p. 138.
4 (i) Khafi Khan II, p. 550. (2) Alamgir Namah, p. 1080.
(3) Dow III, p. 397.
PREVENTION OF CRIMES 235
firming death sentence or awarding severe penalties,
and in cases other than murder encouraged pardon-
ing first offenders. 1 During the reign of an earlier
Sultan (1397 A. D.) a woman in Gujrat was convicted
of adultery for which the normal penalty was death,
but the Qazi found that there were extenuating
circumstances and allowed her to go after admoni-
tion. (BriggsII, p. 352).
The right of self-defence was recognised. A
lad of 15 on whom an attempt at sodomy was made
and who stabbed and killed his assailant, was acquit-
ted and his action commended. (Fryer I,, p. 245).
Similarly a "Moor merchant" killed his wife and
child because he had seen the wife with her para-
mour and he was sentenced to "a pecuniary mulct"
Executions were carried out in public 3 for the
ostensible purpose of deterring future criminals,
and sometimes the convicted person was taken, on a
donkey round the streets of the city (State vs. Arme-
nian, Theft Case, Fryer I, p. 244). Treason pro-
vided the ruler with novel ideas for overawing the
people. In State vs. Shah Haidari and others, Ibn
Batuta, p. 146, a Treason Case, Muhammad Tughlaq
felt no scruples in slaying a holy man in public and
in State vs. Shaikh Had, 4 another man of well-kaown
1 Farman. Mirat I, pp. 278-283.
2 Fryer I, p. 245.
3 Terry, p. 354.
4 Compare Ibn Batuta, p. 146.
236 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
piety, Ibn Batata tells us that the flesh of the accused
who was convicted of Treason was roasted with rice
and thrown to the elephants to be devoured, but
they refused to touch it. In some cases persons con-
victed of Treason were ordered "to be thrown to
the elephants which had been taught to cut their
victims to pieces". Their feet were cased in sharp
iron instruments and the extremity of these were
like knives. When a man was thrown to them,
"they would wrap the trunk about him and toss him
up, then take him with the teeth and throw him bet-
ween their forefeet upon the breast". "If the order
was to cut him to pieces the elephant would do so
with his irons and then throw the pieces among
the assembled multitude." 1 Thieves and robbers
were dealt with with great severity. "If indeed"
writes Jahangir in his Tuzuk, "in contemplation of
future contingencies I have been sometimes led to
deal with thieves and robbers with indiscriminate
severity, whether during my minority or since my
accession to the throne, never have I been actuated
by motives of private interest or general ambition. 2
A thief with a previous conviction was in the
time of the Mughals liable to be executed. 3 Pu-
nishment for his first offence was either a long term
of imprisonment till repentance, or cutting off one
hand (Qata-e-yad). 4 Manrique, a European traveller
1 Ibn Batuta, p. 147.
2 Compare Price, Tuzuk-e-Jehangiri, p. 96 ; Compare
Manucci's remarks about Shahjahan. Storia I, 204.
8 Mirat I, pp. 278-280; Storia I, p. 204.
4 Mirat I, p. 278.
PREVENTION OF CRIMES 237
in the seventeenth century refers 1 to "columns of
stone and lime in which the skulls of malefactors
were enclosed as a warning of what was done in the
name of justice and what was to be done in future. "
Hamilton, another contemporary traveller,
speaks 2 of the criminals "who flee for fear of condign
punishment due to their crimes."
Liability of Executive Officers
The State not only punished the criminal, but
also, in cases of robbery and theft, made the officers
in charge of Law and Order, including the Governor,
pay compensation to the complainant, (Storia II,
pp. 461-62) (Briggs IV, p. 234), or in some cases paid
it itself. A robbery was committed at the Dutch
settlement and the complainants were indemnified
by the State Treasury (Storia I, 204) the amount having
been realised from the Governor himself. A Hindu
merchant was plundered during the night in Mando.
He proved his allegations in the Qazi's court and was
paid compensation out of the fine realised by Govern-
ment from the Police officer in charge (Briggs IV, p.
234). It is said of Sher Shah that in cases of theft or
robbery and murder he made the head man of every
village responsible for either bringing the culprit to
courts or for paying compensation (MS. K. C. C.
Vol. I S. 85-87, 154. Elliot IV, p. 420)
This combination of severe punishments of the
culprit and exaction of compensation from the local
responsible officials was so effective during the palmy
1 Vol. II, p. 149.
2 Vol. I, p. 132.
238 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
days of Sultanate and Mughal Empites that, as Beve-
ridge points out, 1 "robbery and theft formerly common
were almost unknown, and the travellers slept securely
on the highway, and the merchant carried his com-
modities in safety from the Sea of Bengal to the moun-
tains of Kabul and from Telingana to Cashmere."
Manrique, a contemporary European traveller (1629-
1643), writes about the reign of Shahjahan "It (i.e.
good order) was seen not only in the abundance of
the provisions but in the order and cleanliness of
the streets and markets and in the peace and quiet
maintained in them and also in the great justice
and rectitude they observed whereby all lived safely
with their property free from all cares as to the atten-
tions of active and cunning thieves." Vol. II, p. 188.
The same could be said about some of the rulers of
other Muslim States also. Nevertheless there were
times during the reign of Muhammad Tughlaq that
journeys from one town to another could not be
undertaken by people without proper guards, and
robbers invariably infested 2 roads in spite of the
ferocity with which Muhammad Tughlaq enforced
the death penalty.
Disturbers of public tranquillity were evicted
by courts from the locality, vide State vs. Mir Mur-
1 Vol. I, p. 8 1 quoting Perish tah. Compare Terry, p. 354.
"And this round and quick justice keeps the people there in
such order and awe as that there are not many executions."
Bernier does not give such a favourable account as Terry or
Manrique at pp. 188-189, Vol. II.
2 Compare Travels of Ibn Batuta, pp. 108, 156.
PREVENTION OF CRIMES 239
taza Waiz, Khafi Khan II, pp. 564-565. Shaikh Alai,
a religious reformer, was banished by the King's court
for preaching "Mahdism" (Briggs II, pp. 140-141).
In one riot case the convicted persons were kept
in prison till they showed signs of repentance
(Ta zahur-e-asar-e-tobah) 1 (Lahori II, p. 22). Where
a breach of public peace was apprehended orders
corresponding to those passed nowadays U. S. 144
Cr. P. C. could be passed, vide Ashraf vs. Shaikhs of
Ghoryana, Baqiat, p. 29 or sometimes "dangerous"
persons were called upon to execute "Bonds" (Muchal-
kas) to keep the peace (Mirat I, p. 352, Baqiat, p. 39)
or they were sent to prison (Mirat I, p. 321).
If at the time of the Muharram or Holi festivals
clashes occurred between Sunnis and Shiahs 2 or
between Muslims and Hindus 3 "executive" orders
were passed which in a way excluded the jurisdic-
tion of the Qazis. In the reign of Emperor Baha-
dur-Shah I, a suit was brought in the court of Qazi
Khairullah, Bawahir vs. Havildar of Kalupur (Mirat
II, p. 5) on the alleged cause of action that the Defen-
dant had stopped the Plaintiffs from sacrificing a cow
at the Idul Zuha. The Qazi refrained from dealing
with the suit himself and referred it for disposal to
the Governor, although the latter (Ajit Singh) was a
The main agency employed for the prevention
1 Compare Mirat I, p. 348.
2 Baqiat, pp. 29, 38, 39,40.
8 Mirat II, p. 5 .
240 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
of crimes was a force of Barqandazes 1 (armed Police)
and Sipahis (Manrique II, p. no) working under the
command of the local Faujdars, Kotwals and Shiqah-
dars. There was no Provincial head of Police or
Provincial Police department. The Faujdar whose
main duty, 2 as I have said elsewhere, was to maintain
peace within his Sarkar, was provided with troops
(Ahadis) in addition to the Barqandazes, and he was
required to apprehend offenders and to assist the
people in their fight against robbers and dacoits and
to suppress riots (Lahori II, p. 21). All the Police
stations (Thanas) in the Sarkar were under his con-
trol. In case of necessity he could requisition help
from the Faujdar of a neighbouring Sarkar in pre-
serving order. 3
Faujdars, as mentioned in a previous chapter,
were sometimes stationed in Parganahs also (Br.
Mus. MS. Or. 1779). They were called upon at
the time of appointment to sign a covenant (Qubu-
liat) agreeing to compensate the people within their
charges in case of robberies. 4
In the cities and large towns the work of the
Faujdar was done by the Kotwal (De Laet II, p. 270)
(Ain II. Jarrett, p. 41 (Br. Mus. MS. 1779). The
relation between a Kotwal and a Faujdar may be
compared with that existing between the Commis-
sioner of Police, Bombay, and the Inspector Gene-
ral of Police for the Province of Bombay or between
the Kotwal of Hyderabad Daccan with the Inspector
1 Lahori II, p. 21; Collections; Zawabit-e-Alamgiri f. 23.
2 Ain II Jarrett, p. 40.
* Bahadur Shah Namah MS. K. C. C.
4 Br. Mus. MS. Or. 1779; Compare Storia II, 461-462.
PREVENTION OF CRIMES 241
General of Police Forces in H. E. H. the Nizam's
Dominions. The Kotwal was officially subordinate
to the Faujdar. Manucci says 1 that he was "subor-
dinate to the Qazi" and received "orders from
him" but it seems that the Qazi's control was only
that of a modern Magistrate over a Police officer or
perhaps because the KotwaPs judicial orders were
appealable to the District Qazi. Dr. Nassau Lees
in J, R. A. S., 1867, pp. 443-5 has referred to Abdul
Malik, Kotwal of Delhi, as Governor of Delhi. This
seems erroneous, though undoubtedly the Kotwal
of the Capital who used to attend on the King regu-
larly must have been a man of influence. We are told
that during the Sultanate period once a Commander
in Chief of the Army was selected for this post, (Zia
Uddin Barni). Another Kotwal of Delhi was made
the Chief noble of the Empire, Malikul Umera (Elliot
III, p. 126). His duties may be enumerated as follows:
1. To keep an eye on bad characters and to
maintain peace and order. Storia II, p. 421.
2. To arrest thieves and robbers. Storia II,
p. 421. Fryer I, p. 246.
3. To supervise the watchmen (Rahdars) of
4. To ride through the cities at night (Ovmgton,
p. 137; Fryer I, p. 246).
5. To guard public roads. (Mirat I, p. 326).
6. To supervise transport arrangements with-
in his area. (Ain-e-Akbari).
7. To clear cities of brothels. (Fryer I, p. 246).
1 Storia II, p. 421.
242 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
8. To extinguish fire. (Fryer I, p. 246).
9. To stop distillation of liquor (Storia II, p.
10. To look after the customs at the seaports.
(Manrique II, p. 137). In this respect a
Kotwal must have been subordinate to
a Qazi. He was also required to regulate
market prices (Collections).
11. To investigate the reports of offences to
which 'Hadd' 1 and Ta'zir 1 applied (Khafi
Khan II, p. 436).
12. To watch movements of people and to
investigate cases, if ordered by a Qazi. (Sto-
ria II, p. 421). (Collections).
13. To prevent dishonest persons from cheating
people. To settle idle men to work. (Col-
14. To enforce curfew orders. (Collections).
15. To maintain a register of local inhabitants.
(Ain II, p. 42).
1 6. To arrange for the burial of "la waris" (un-
claimed) corpses (Collections). To make
an inventory of the property left by missing
persons. (Ain II, p. 42).
17. To examine weights and currency. (Roe).
During the Sultanate period the Mohtasib
usually examined weights, but according
to Sir Thomas Roe the Mughals gave this
work to the Kotwal.
1 See Chapter VII. Tendencies in Criminal Administra-
PREVENTION OF CRIMES 243
1 8. To prevent slaughter of cattle in public.
19. To keep guard over the Treasury.
20. To hold charge of the local lock-up (Fryer
I, p. 245). The Kotwal of Delhi acted
as Master of Etiquette at the Royal Court
(Roe, p. 70). His appointment was made by
the Emperor himself, but the inferior Kot-
wals were selected by the Subahdar or Nazim 1
(Mirat Supp. p. 153). Their letters of ap-
pointment were issued by the Master of
Ordnance (Mir Saman). Mirat Supp. p. 153.
A Kotwal of a town during the Mughal
period received a monthly salary of Rs. 213
equivalent to about Rs. 650 of the present
Kotwals were generally supplied with a force
of Sawars 2 mounted Police and foot constables 3 and
armed men 4 (Barqandazes). The city or town was
divided into wards, in each of which there was a
'Chauki* (outpost) containing one horseman and
twenty to twenty-five footmen to maintain peace
(Storia II, p. 421). The Kotwals were assisted by
Naibs or deputies who had no magisterial duties
(MS. Fraser 157. Oxford).
1 Mirat Supp. p. 153.
2 Storia II, p. 421.
3 Labor i II, p. 21; Manrique II, p. 137.
Pyadah Mirat I, p. 334. Fryer calls him 'Lashkari'. I,
4 Zawabit-e-Alamgiri .23; Collections.
244 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Shiqahdars. (Barn/, p. 337) (Br. Mus. MS. 6,599)
Shiqahdars' main duty under Mughals was to
help the collection of revenue and to "keep the ryots
and the public contented" (Br. Mus. MS. 6,599).
(Br. Mus. MS. Add. 22,831 f. 186). A Shiqahdar
was an inferior officer compared with a Kotwal (Man-
rique I, p. 425).
Thanadars. (Br. Mus. MS. Or. 1779).
The Parganahs were divided into Police Stations
each comprising of a number of villages and known
as Thajiahs, each under a Thanadar who had a force
of infantry (Pyadahs) with him. The Thanadar
seems to have been in every way the predecessor of
the modern Sub-inspector of Police who is still called
the Thanadar. The 'Police' force stationed in the
'Chaukis' and 'Thanahs' was inspected by the King,
the Governor, and the Faujdar, whenever they toured
in the interior of the country.
Nothing in the shape of Police Rules or Regu-
lations for those days can be traced. The efficiency
of the Force in all likelihood must have depended
upon the personality of its officers.
In the villages the head men Moqacldams or
Patels or Chaudhris were required 1 to make one
list of residents and another of new-comers whose
movements were also to be ascertained more or
less on the lines of modern lists A and B of the Indian
Police. Abbas Khan thinks 2 that these head men
1 MS. 154 Vol. I. K. C C, pp. 85-86.
PREVENTION OF CRIMES 245
were careful to maintain order and prevent crimes
within their territorial limits.
Each village or group of villages had a watchman,
(Chaukidar) who represented the Police in his area,
while the head man, who "enjoyed honour and res-
pect" among the people, may be said to have repre-
sented the Faujdar. Like the Sheriffs of England,
who were "responsible for the good government
of the Boroughs under them", 1 the larger Land-
lords or Zamindars were required to help the officers
of the State in maintaining peace and collecting
Revenue (MS. 370. I. O. L.). The Governor
could give them grants of land, on condition of mili-
tary service, 2 subject to the approval of the Emperor.
These landlords or Zamindars were also known as
Watandars (Farameen, p. 161) and were to be found
in ever} 7 * Parganah.
Watch and Ward
The duties of the Police Officers in the cities and
towns included patrolling the inhabited areas three
times at night. 3 They were to arrest persons com-
mitting or about to commit offences. 4
People harbouring proclaimed offenders were
prosecuted 6 and Newswriters or Waqayah Nawis
were enjoined to announce widely the presence of
alleged offenders in a locality. Preparation for dacoi-
1 Compare Holdsworth History of English Law, I, p. 7.
2 Tracts relating to the affairs of the East India Co. 1772-
1773, pp. 3-4(1. O. L. Records). Lanepoole, Aurangzeb, p. 112.
3 Ovington, p. 137; Fryer I, p. 246.
4 Compare S. 109, Cr. P. C. in British India.
6 Compare Aurangzeb V, p. 421.
ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
ty was liable to severe punishment, and sometimes
people convicted of this oflence were kept in prison,
till they offered satisfactory assurance of future
good conduct 1 (Habs bad at Ta'zir). In the time
of Firoz Tughlaq 2 (1351-1387) stringent measures
were taken to guard roads, and Sher Shah built 3
'Saraes* or shelter houses at the outskirts of every
town for travellers to stay at night and 'Rahdars'
or watchmen were posted in each Sarae to guard the
luggage and to watch the coming in or going out
of strangers. The system was continued by the Mu-
ghals (Manrique II, p. 100). (Storia I, p. 68).
The Sultans and the Mughal Emperors frequently
toured 4 the Kingdom to acquaint themselves with
the general conditions of their subjects and of the
conduct of their officers as well as the activities of
lawless people. Balban tried two cases of oppres-
sion by Governors on the spot, and sentenced one
to death and the other to enslavement (vide State
vs. Malik Faiz and State vs. Haibat Khan. Briggs
I, p. 253).
There was no regular system of 'surveillance',
until Aurangzeb issued his Farman 5 in 1672-1673
A. D. directing that a person convicted of theft was
to be kept in prison, till he showed signs of repent-
1 Compare S. no, Cr. P. C. and S. 565, Cr. P. C. in British
*Barni, pp. 578-582.
8 Elliot IV, p. 420.
4 Compare Price. Tuzuk-e-Jehangiri, p. 117. (Tr.).
5 See Mirat I, pp. 278-283.
A Prison Scene
PREVENTION OF CRIMES 247
ance (Ta asar e tobah zahir shawad) or that, if the
accusation was not proved and there still remained
suspicion against the accused, the Kotwal should
keep an eye on him (o ra nigah darand) 1 . Rioters
were also dealt with in the same way. 2
In the reign of Jahangir (1605-1628) a dacoit
with previous convictions who had been condemned 3
to be trampled to death by an elephant resisted the
elephant's attack and was granted a pardon, but was
kept under surveillance. He then escaped from the
place where he was ordered to live and was caught
The Kotwal was required (Ain II, p. 41, Jarrett)
to maintain a register of suspected persons and to
keep a watch on their movements through spies.
In State vs. Qazi Jalal Kashani and others when an
accusation of Treason was not substantiated in court,
Sultan Jalal Uddin Kliilji kept the accused persons
under observation and later on banished 4 some of
them from the country (Jila watan).
There were jails (Bundi Khanahs) 5 in every im-
portant place for persons sentenced to imprison-
ment. In other places there were 'lock-ups' 8 . Pri-
soners, who were considered specially dangerous,
1 Mirat I, p. 283.
2 Mirat I, p. 348.
3 Elliot VI, pp. 346, 504.
4 Compare Elliot III, p. 145.
6 Compare Manrique I, p. 421, II, pp. 113, 326, Shams
Siraj Afif, p. 509. Badaord I, p. 223. See Mundy Travels,
p. 285. Vol. I. Indian Record Series. "Jail houses".
6 Compare Mirat, I, pp. 282, 283; Manrique I, p. 422.
248 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
were concentrated in forts like Gawalior, 1 Rohtas,
Bharatpur, etc. under the direct control of the Central
There was no Provincial jail organisation o
service. The control and supervision of Jails was
vested in the Qazis and Kotwals. Where there
were no Kotwals, the Thanadars were in charge.
The Qazi was like the present District Magistrate
in India, the regular official visitor (Hidayah, p. 336.
Mirat I, pp. 278-283), but the superintendent was the
Kotwal of the town (Fryer I, p. 245 ). Under-trial
prisoners were placed in the custody of the Kotwal
and he was responsible for their reaching Courts in
time 2 .
According to the author of Badshah Namah 8
regular inspections of jails were made by the Kings
and the Governors. A Governor was expected to
visit the jails in his Province once a month. (MS.
Add. 6580 f. io4a). We are not told whether he
succeeded in doing so. The size of most of the Pro-
vinces would render this unlikely.
In the reign of Aurangzeb (1658-1707) emphasis
was laid on the Qazis' inspection of jails. 4
The jails were in the immediate charge of a chief
jailor 5 (Daroghah).
The food to both civil and crimina! prisoners
1 Monserrate, p. 211. Storia I, p. 69.
2 Compare Fryer I, p. 246. Terry, p. 366.
8 Lihori I, p. 245. Compare Shams Siraj Afif, p. 509.
4 Fatawa. Kitabul Qazi. Compare Hidayah, p. 336.
5 Monserrate, p. 206. Compare Mahmud of Ghaznah,
p. 150. Manrique I, p. 422. He was known as Amir ul Haras
PREVENTION OF CRIMES 249
was supplied by the State (MS. 370 I. O. L.) and there
is no record of decree-holders being charged with
the cost of feeding their debtors.
THE WORKING OF THE JUDICIAL
The immediate successors of the Prophet held 1
court in mosques where every person could approach
them without hindrance. The Abbaside Caliphs
erected separate buildings for their Qazis. The
earlier Emperors of Delhi and the Mughal rulers
did the same. 2 The Court buildings in the time
of the Sultans were known as Darul Qaza (Barni,
p. 580) or Darul Adi. The Mughals called them
Adalat Khanah 3 or Kachehri 4 and erected them
practically in every city and town. 5 These buildings
were generally spacious and could accommodate
the crowds 6 who sometimes gathered to hear sensa-
tional trials. Many of the old "Kachehri" buildings
which still survive in the United Provinces (India)
have got mosques attached to them.
The dais on which the Qazi took his seat was
known as Majlis-e-Qazi (Fiqh). The Qazi sat on a
carpetted floor with a large pillow (Gao takyah) at
1 Compare Hidayah, p. 337.
2 Compare (i) Ibn Batuta, p. 114; (2) Manrique II, pp. 159,
8 Bernier (Oxford), p. 263.
4 Mirat I, p. 282. The word is still in use in India.
5 Holden. Mogul Emperors, p. 39 and Dow III, p. 411.
6 Compare Khafi Khan. Vol. II, p. 258.
WORKING OF JUDICIAL MACHINERY 25 I
his back. 1 His actual seat was called 'Masnad-e-
Qazi". The whole platform where the Qazi sat was
raised and generally prominent. The Emperors had
their Court building specially erected in one of the
entrances to the Palace (Manrique II, p. 159). Shah-
jahan, when holding trials, declined to sit on his
costly peacock throne and preferred to sit on its
simpler and unornamented substitute (Takht-e-Firosi).
The paintings in the Bodleian Library, Oxford, of the
court of Shahjahan show that a scale of equity (Mi-
zan-e-adl) was prominently displayed. The Kotwal's
court building was known as 'Chabutra.' 2
Court hours were generally announced by the
Presiding officers themselves (Collections). They
were not fixed 3 by the Emperor till about 1672, when
Aurangzeb learnt 4 from the report of Waqae Nigars
that the Courts in the province of Ahmadabad sat
only on two days. He issued directions that the
presiding officers should sit regularly on Saturdays,
Sundays, Mondays, Tuesdays and Thursdays. On
Wednesdays the Qazi-e-Subah was to sit with the
Governor on his Bench, 2 and Friday could be enjoyed
as a holiday.
No definite information is available about the
Turkish rulers but both European travellers and
Persian historians have noted the punctuality with
1 Compare picture of the court of Qazi Abdul Wahab.
Storia III, p. 210.
2 Mirat I, p. 282.
3 See Diaries in Hyderabad Collections.
4 Mirat I, p. 275.
252 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
which the first seven Mughal Emperors sat in court.
Colonel Dow, in his Enquiry, says 1 "Time had
established into an almost indispensable duty that
the Emperor with his assessors, the principal Judges,
was to sit for two hours every day in the hall of justice
to hear and decide cases. Shahjahan who took great
delight in promoting justice frequently exceeded
the usual time."
The court hours fixed by Aurangzeb 2 were from
two 'gharis' (hours) after sunrise to a little after
midday. These hours seem to have been maintained
both in the hot and cold weathers. Presumably
this was also the time during the Sultanate period.
Manrique records in i64o 3 that his own case was
taken up by "the Judge" at "one o'clock in the morn-
ing". This seems to have been either a special
arrangement or a mistake in the text or the transla-
tion, as no other writer has referred to such odd
hours. The practice of some of the Mughal Em-
perors was to sit in the Court at 7-30 a. m. 4 Accord-
ing to Monserrate "everything that goes on" in Court
was regulated clocklike. 6
As Rae Bhara Mai has pointed out 6 there were
not many cases for disposal in courts, and we hear
nothing of regular court vacations. Bernier says
*Vol. Ill, p. 395.
2 Mirat I, p. 275.
3 Vol. II, p. in.
4 Alamgir Namah, p. 1079.
5 Commentary, p. 211.
6 Elliot VII, p. 172. Compare Bernier, p. 236.
WORKING OF JUDICIAL MACHINERY 253
that the "Kings of Hindusthan" seldom failed, even
when in the field, to hold trials "the same as when in
the capital/' and the custom was regarded as a matter of
Law and duty and the observance of it rarely neglected 1 .
No dress seems to have been prescribed for the
Qazis, but from the picture in Storia III, p. 210 it
appears that the Qazis had an "aba" (gown) while
sitting in court and a "top" like the modern
wig was worn on the head. Since the dispensation
of justice was considered a religious duty it seems
likely that the Qazis must have adopted the Arabian
dress which to this day 2 is worn in India by religious
leaders on solemn occasions.
Disposal of Business
The disposal of judicial work by the Qazis or the
Emperors may be estimated by a description of the
trials given below:
Civil Appeal 1500 A. D. Beveridge I, p. 102.
Court Sultan Sikander Lodi, (1489-1517).
"Two brothers, private soldiers, had, among
other booty obtained during a siege, become pos-
sessed of two large rubies of different shapes. One
of the brothers, having determined to quit the ser-
vice and return to his family at Dehli, the other
entrusted him with his share of the plunder including
one of the rubies, and told him to deliver it to his
1 Travels, pp. 263, 360. Compare C.H. of India, Vol. IV,
2 The gown and the wig worn by Judges in British India
are not much different from what the Qazis wore in those days.
2J4 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
wife. The soldier who had continued to serve on
returning after the war was ended, asked his wife for
the ruby and was told that she had never seen it.
The brother on the contrary declared that he had
delivered it, and when the case was brought before
the court, produced a number of witnesses who swore
that they had seen him deliver it. The Judge, acting
on this testimony, decided against the woman telling
her to go home and give the ruby to her husband.
Her home was thus rendered so uncomfortable that
as a last resource she laid complaint before the King.
He listened patiently to her statement and then sum-
moned all the parties before him. The witnesses
repeated their evidence and in order to strengthen
it affirmed that they perfectly recollected the size and
shape of the ruby which they had seen given. On
this the witnesses were separated and a piece of wax
being given to each of them as well as to each of the
soldiers, they were told to mould it into the form of
a gem. On examination the models of the soldiers
agreed, but that of all the others differed. The
King drew the inference that the soldiers alone had
seen the ruby and the witnesses had been suborned
to perjure themselves."
The appeal was allowed.
Widow vs. King Ghyas. Stewart, pp. 90-91.
Court: Qazi Siraj Uddin Qazi-e-Subah. Bengal.
(About 1490 A. D.)
"One day, while the King was amusing himself
in the practice of archery, one of his arrows by chance
wounded a boy, the son of a widow. The woman
immediately repaired to the tribunal of the Qazy,
WORKING OF JUDICIAL MACHINERY 255
Siraj-e-addeen, and demanded justice. The judge
was confounded, and said to himself 'If I summon
the King to my court, I shall run the risk of being
disobeyed; and if I pass over his transgression, I
shall be one day summoned before the court of God,
to answer for my neglect to duty/ After much re-
flection, he ordered one of the officers to go and
summon the King, to answer the complaint of the
woman. The officer, dreading to enter abruptly
the palace with such an order, considered on some
means to get introduced into the presence of the
King. At length he ascended the minaret of the
mosque adjoining the palace, and at an improper
hour called the people to prayers. The King hearing
his voice, ordered some of his guards to bring before
him the man who thus made a mockery of religion.
When the officer was introduced into the royal
presence, he related the circumstance of his call to
pray for the King and also concluded by summon-
ing His Majesty to the Qazy's tribunal. The King
instantly arose, and, concealing a short sword under
his garment, went before the Qazy; who, far from
paying him any mark of respect, said to him with a
tone of authority, 'You have wounded the son of
this poor widow; you must, therefore, immediately
make her an adequate compensation, or suffer the
sentence of the Law.' The King made a bow, and,
turning to the woman, gave her such a sum of money
as satisfied her: After which he said, 'Worthy Judge,
the complainant has forgiven me/ The Qazy asked
the woman if such was the fact and if she was satisfied,
to which the woman having assented, was dismissed.
256 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
The Qazy then came down from his tribunal,
and made his obeisance to the King: who, drawing
the sword from beneath his garment, said, 'Qazy,
in obedience to your commands, as the expounder of
the Sacred Law, I came instantly to your tribunal,
but if I had found that you deviated in the smallest
degree from its ordinances I swear that with this
sword I would have taken off your head! I return
thanks to God that matters have thus happily termi-
nated, and that I have in my dominions a Judge w r ho
acknowledges no authority superior to the Law'.
The Judge taking up the scourge said, 'I also swear,
by the Almighty God, that if you had not complied
with the injunctions of the Law, this scourge should
have made your back black and blue! It has been
a day of trial for us both/ "
The King was much pleased and handsomely
rewarded the upright Judge.
Civil Appeal. Storia I, pp. 199-200.
Court Emperor Shahjahan, 1628-1658.
"A youth wanted to marry a woman. The
latter refused. He filed a suit in the court of the
'Qazi of Agrah' alleging that he had illicit connec-
tion with the woman who had promised to marry
him. The Defendant denied the allegations. The
Plaintiff on being examined by the Qazi described
her body accurately having learnt details from an old
woman. The Qazi got the woman examined and
found the description correct. The Plaintiff's suit
was decreed. Proceedings started on the Execution
side, but the woman prayed for time and her request
was granted. After a month she went to the house
WORKING OF JUDICIAL MACHINERY 257
of the youth (Plaintiff) and catching hold of his throat
accused him of stealing her things while he was with
her in her house. She took a complaint against him
to the Qazi's court. The Plaintiff accused denied the
charge and said, "I have never seen this woman before."
While the proceedings in this case were going
on the woman took a copy of this statement and pre-
ferred an appeal to the court of Shahjahan. The
Emperor admitted this statement made by the Res-
pondent in a Criminal Court and allowed her appeal.
The Qazi's decree was set aside and, on learning
that the youth had obtained details about the appel-
lant from an old woman, the Emperor ordered his
prosecution for bringing a false case."
Bail Appeal. MS. 370 I. O. L., MS. Raqaem-
e-Keram K. C. C. f . 1 5 .
Court Emperor Aurangzeb.
The appellant was sent to the lockup on some
charge details of which could not be ascertained.
The following judgment was delivered:
"The order sending the appellant to jail is illegal.
He should be released forthwith. The case is trans-
ferred to the Court of the Chief Justice for decision
in accordance with Law so that justice should be done
to everybody. By God's grace the Qazi is honest,
pious and decides the disputes impartially." "An
order of the Qazi must be obeyed."
Miscellaneous Appeal against an order of a Go-
vernor, Waqae Alamgir, p. 72. Ruqaat MS. 1344
I. O. L.
Court Emperor Aurangzeb.
Judgment "This is an appeal against the order of
258 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Khan Jahan Bahadur by the merchants whose horses
have been confiscated. He (Khan Jahan) has forgotten
the day of judgment and his own death which shall
approach him soon. It seems he does not even fear
the wrath of God and the disapproval of the Sover-
Court Emperor Aurangzeb.
Judgment "The judgment in this case between the
Kashmiris and Ibrahim Khan has not been properly
written by Hafizullah Khan. He has not considered
the consequences and has blundered badly. There is
no meaning in getting the matter enquired through
Dilawar Khan alone. This is why it has been said
that the Qazi and Amin must make thorough and
impartial investigation and should not decide the
case on a mere admission or denial. They should
not be guided by their personal whims. Such
people have existed in the past and it seems the
Devil is again overpowering their sense of dis-
Case remanded for retrial.
MS. Raqaem-e-Keram K. C. C f. 15. Br. Mus.
Manucci vs. Portuguese. Storia III, pp. 128-129,
Court Shafi Khan. Governor Karnatic.
Manucci filed a plaint claiming recovery of debts.
The court summoned the Defendant. The Parties
stated their cases in court. The Defendant denied
the claim on oath. The Plaintiff was called upon to
produce evidence. Plaintiff filed documents and an
WORKING OF JUDICIAL MACHINERY 259
affidavit. The court did not know the language of
the documents and sent the papers to the English
Governor of Madras for translation. When the
translation was received the court went through the
documents and ordered that the case be made over
to the English Governor of Madras for decision.
The parties agreed.
The Governor of Madras heard the arguments
in a Bench consisting of himself and his Staff and, on
the evidence that had already been produced, decreed
the Plaintiff's suit.
Murder Case. (Collections). State vs. Sulai-
Complaint of Nirman and widow of deceased.
Court Saadat Khan. Qazi-e-Subah. Jaunpur,
1680 A. D.
judgment "The complainants alleged that the
accused killed Bishnath when he was sleeping in his
threshing floor. The parties were summoned. The
complainants are absent and there is no one to pro-
secute this case. The accused denies the allegation.
The complainants were directed to produce evidence
today, but there is none to support their complaint.
The accused is, therefore, discharged, let a copy of
the order be given to him."
Theft Case. (Collections). State vs. Madari
Court Qazi of the District Parenda, South India,
Judgment "It is alleged that Madari Faqir entered
the house of a widow at night. When she discovered
his presence, she raised a cry for help. The police
260 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
came up and arrested the accused, who was prosecuted
for committing burglary. The accused denies the
allegation and says that he had gone out to pass water
when the widow shouted out and he himself went
to her help when the police arrested him. As no-
thing was found on the person of the accused I con-
sider his case doubtful and acquit him. He should
be released forthwith."
Civil Suit. 1687 A. D. Baqiat, p. n.
Court Qazi Ghulam Muhammad. Parganah
Plaintiff: Saiyad D. Bahar.
Defendant: Mst. Butul.
Claim re-possession of 15 bighas of muafi land
Judgment "On Ziqad 12. 1099 A. H. (1687 A.D.)
Saiyad Dan ibn Bahar ibn Ala Uddin presented a claim
to the court of this humble servant of Shara' Qazi
Ghulam Muhammad of Parganah Jais that the land in
dispute was his madad-e-ma'ash and that the Defen-
dant was obstructing him from using it. The Defen-
dant on being questioned denied the Plaintiff's title
to the land in dispute and alleged that it belonged to
Saiyads of Saydanah.
I accordingly order that as the Defendant has
no justification in preventing the Plaintiff from
enjoying his profits, she should refrain from interfer-
ing with the Plaintiff's rights."
Delay in Proceedings
During the Mughal period instructions were
WORKING OF JUDICIAL MACHINERY 261
occasionally issued 1 by the Emperors to Judges
to expedite trials. "Those who apply for justice"
states one of Akbar's Ains "let them not be inflict-
ed with delay and expectation. Let him object to
no one on account of his religion or sect."
Bernier, a contemporary traveller in the xyth
century India, thinks that the suits were "speedily
decided." 2 According to Terry, a European mis-
sionary attached to the Staff of Sir Thomas Roe, the
trials were "conducted quickly". Manucci says that
the Emperor "causes the judgment he pronounces
to be executed on the spot." 3 But, it seems, special
emphasis was laid on the speedy decision of criminal
cases. 4 In civil cases sometimes the proceedings
took considerably more time. Abdul Wahab's civil
suit was referred twice within the space of one year
by the Qazi-e-Subah to Jahangir for orders on pre-
liminary issues only, as the Defendant was a high
personage of the Imperial Court (Tuzuk. 306 S. A.).
The Governor of Kara disapproved of the delay in
Hamiyat Ali vs. Gauri Shankar (Baqiat, p. 32), and
Sikander Lodi is said to have taken to task his
Chief Mir Adi for prolonging proceedings for two
months in a suit which he could finish in one day.
Elliot IV, p. 454, Kennedy I, p. no. The delay in
civil suits may have been due to the emphasis laid
in the Shara* on compromise (As sulh khairun).
According to Khafi Khan, Chief Justice Abdullah
1 Compare Ain II. Jarrett, p. 38; Mirat I, pp. 282-283.
2 p. 236. Travels. Compare Manrique II, p. 189.
3 III, p. 262.
4 Compare Mirat I, p. 278.
262 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
(1678-1690) was an over-scrupulous Judge and usual-
ly tried to get the parties to compromise 1 (VoL II,
p. 439). Bernier thinks 2 that compromise (Musaliha
Baba) was often effected where the parties were poor.
The Law, however, did not suggest any delaying of
proceedings in order to get a compromise. Only
the principle was stated. Individual rulers, 3 as Sir
Henry Elliot observes, in most cases "never showed
any delay" (Vol. p. 411). Fryer who visited India
in the reign of Aurangzeb speaks of law suits being
soon ended. 4
Integrity of Judge
In the decision of claims and disputes the Law
expected of Qazis a high integrity. (Hidayah Book
XX). In the following cases bribery w r as proved
and the offenders were punished severely.
1. State vs. Kotwal Said (Shahjahan's Court).
Storia I, p. 197. The accused was executed
2. Deshmit vs. Faujdar (Alamgir's Court). MS.
3. Case. Dow III, pp. 334-335.
4. Case of Qa2i Khair Uddin. Baqiat, p. 30.
Sir William Foster in "India Office Records,
1600-1640, p. 99" mentions a case where an English
sailor purchased his release from the lockup by paying
1 Compare Aurangzeb III, p. 85.
2 p. 237.
8 Compare Dow III, p. 334 "delay in the execution of
justice (under the Mughals) subjected the Judge to the risk of
compensating the aggrieved party for the loss".
4 Edwardes and Garrett, p. 191.
WORKING OF JUDICIAL MACHINERY 263
money to the Kotwal.
Manucci says that in one case the Qazi was
suspected by him of having accepted a bribe (Storia,
Vol. I, p. 198).
We are also told by historians 1 that during the
reign of Firoz Tughlaq a "clean up of the judiciary"
was made. One Qazi-e-Subah who had been found
guilty of corruption was executed in open court
(Afif, p. 473). Sir Thomas Roe made a complaint in
1615 to the Governor (Prince Khurram) against the
"Judge of Alfandica" (Customs House).
While it seems that some of the inferior Qazis
or other judicial officers were not free from this vice,
it can not be said that the whole judiciary was cor-
rupt. 2 Sir Thomas Roe who was himself not satis-
fied in one case had no hesitation in representing to
the Governor that "all controversies between Eng-
lishmen and the Officials of the town" should be
laid before the Qazis of the place for speedy justice
Supervision by higher Courts
The strict supervision over the officers maintain-
ed by some of the Turkish 3 Sultans and the Mughals 4
through news reporters (Waqae Nigars) and spies
(Dow III, p. 397), or Barids or Khufyah Nigars
1 Briggs I, p. 464.
2 The remarks of Sir Jadunath Sarkar (Mughal Admn.
I 935> P 2 ?) tnat all the Qazis of the Mughal period with a few
honourable exceptions were notorious for taking bribes, are
not based on any examination of bribery cases.
8 Compare Barni, 284; Ameer Ali. Islamic Culture 1927,
4 Collections, p. 344.
264 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
(Storia II, p. 421) kept the Rulers well informed 1
about the conduct of their officials. If the news sent
by these reporters showed any delinquency on the
part of the officials, enquiry was made without delay. 2
By holding courts regularly the Rulers were able to
examine in appeals judgments of the inferior Qazis,
and Emperors like Aurangzeb used their pen freely
in comments. 3 Dereliction from duty or corrup-
tion, whenever it came to the notice of the Rulers,
was promptly punished. 4 Those found guilty were
often punished with death. Manrique, a European
traveller in 1632, observes "For unjust and corrupt
Judges who do not comply with the demands of
justice, they erect still loftier and more costly columns
whereon they describe on bronze plates the name of
the Judge and the fault for which his skull is con-
fined here". Vol. II, p. 149.
Taimur's maxim that a ruler must supervise the
administration of Justice and keep himself well in-
formed 5 (khabardari wa agahi) was scrupulously acted
upon by the Sultans of the Slave dynasty, 6 Ala Uddin
Khilji, Firoz Tughlaq, Sikander Lodi 6 and the first
seven Mughal Emperors and European travellers
and Persian historians give copious references to
1 See Collections; Mirat Supp. p. 152; p. 218.
Storia II, p. 331; Compare Mirat I, p. 336.
2 Mirat I, p. 275; Anecdotes, p. 94. Br. Mus. MS. Add. 26,
26,238 f. 14.
3 Waqa-e-Alamgir, pp. 72, 80.
4 State vs. Kotwal Said. Storia I, p. 197; Elliot IV, p. 411;
Dow III, pp. 334-335-
5 Tuzuk-e-Taimuri K. C. C. p. 64.
6 See Chapter III.
WORKING OF JUDICIAL MACHINERY 265
their vigilance in this respect. 1
Rae Bhara Mai, writing about the Qazis of Shah-
jahan's reign, says that in general they endeavoured
to work up to the standard demanded of them, lest
it should be mentioned before the Emperor that
justice had not been done. (Elliot VII, p. 172).
A specimen report of a Waqae Nigar is given
"Roznamchah Waqae Sarkar Ramgir Shawwal
3." 5th year of accession (Aurangzeb).
Khwajah Beg Faujdar, Qazi Muhammad Fazil
and Laal Chand Diwan came to office at two
hours after sunrise and took their seats in
their respective Courts. The Faujdar
announced that he would hold court on Sun-
days, Mondays and Wednesdays during the
next two weeks
The officers sat for two hours and closing their
courts went home" Collections (1663 A. D.) Some
of these 'diaries' bear the following remarks of the
"Ba arz-e-ali raseed" (seen by our Exalted self).
The following is an extract from an order passed
by Aurangzeb in another case in which enquiries
were started on the report of a Sawaneh Nigar (Br.
Mus. MS. Add. 26,238 f. 14).
"A perusal of the report of Amanullah, Mir
Imarat (Engineer, Building Dept.), regarding the
1 CompareMonserrate,p. 209; Tu2uk, p. 3; Rahbar-e-Daccan
I 93 I > PP- 3> 1 9> Storia I, p. 203; Dow III, pp. XXV- VI, 334-5;
Kennedy II, p. 38; Lancpoolc, p. 15; Khafi Khan II, p. 550;
Barni, pp. 578-580, 39-43; Dr. Careri, pp. 222-223.
266 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
property, groves and buildings and the wealth of
the Qazi of Dehli showed that the allegations against
the Qazi were correct. He has accordingly been
dismissed and copy of the order has already been
issued Qazi Haider is to be appointed in the
AuranggeVs Lega/ Reforms
Among the long list of medieval rulers Aurang-
zeb's name stands out prominently for introducing
a series of reforms in the judicial administration some
of which survive to this day.
Firstly he started the system of "Remand" by the
court to Police custody (Mirat I, pp. 278-282). The
Kotwals were ordered to obtain a written order from
the Qazi to keep a man under custody (Dast-khat-e-
Qazi bare-e-dastawez khud giraftah mahbus sazand).
Secondly Aurangzeb took particular notice of
the delay which he marked in the disposal of work
in some courts, and issued directions that all criminal
cases must be tried without delay. 1 In this connec-
tion he issued a detailed Farman 2 that prisoners were
not to be taken into custody until prima facie legal
evidence' (Subut-e-sharai) was available and that no
prisoner was to remain in Jail without a lawful charge
(hech kas be hisab dar qaed na manad). By a curious
coincidence when Aurangzeb was issuing these regu-
lations in India in 1679, ^ ie British Parliament was
enacting the Habeas Corpus Act for England. Au-
rangzeb disliked long adjournments. If after the
i Mirat I, pp. 278, 338, 275.
2 Br. Mus. MS. Add. 6580.
WORKING OF JUDICIAL MACHINERY 267
first date of hearing the case was not taken up, next
day the Kotwal was required to send the undertrial
prisoners daily to the courts till matters were decided
(har roz anja be ferisand ke maamlah ra ba istejal
faisal numayend) Mirat I, pp. 282-283. He himself
set the example by sitting in his court daily. 1
Thirdly the keepers of State records of rights
were directed to permit the public to examine them. 2
Fourthly government "Vakils" were appointed
in every district 3 as mentioned previously.
Fifthly Aurangzeb, in addition to his notable
achievement of compiling the Fatawa-e-Alamgiri,
framed written regulations (Zabtah) on every con-
ceivable subject and required strict adherence 4 to
every detail of them.
Sixthly, according to Colonel Dow, 5 Aurangzeb
reformed the system of Appeals. Since the time
of Akbar the Emperors had tried cases personally
and their interest in giving 'impartial' decisions used
to attract litigants from far off comers of the Empire.
Aurangzeb realising the expense and trouble to which
such litigants were put in coming to the Capital,
issued orders that parties should get their disputes
decided by the local Qazi in the first instance, 6 and
that the Laws of the Empire should be widely pro-
1 Alamgir Namah, pp. 1076-1077; Mirat I, p. 257.
2 Collections. Compare Dow III, p. XXVI "the Registers
of the rents to be left open for the inspection of all that the
people might distinguish extortion from the just demands of
8 See Chapter V, Lawyers.
4 StoriaIII,p. 260; Waqae,pp. 31, 79, 108. Anecdotes, p. 132.
5 Vol. Ill, p. XXXIII, p. 334.
6 Mirat I, pp. 257-258.
268 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
claimed 1 by the various State officials so that intend-
ing litigants should understand their position before
starting on a journey to the Capital. Civil Appeals
were only admitted "beyond a certain sum", 2 and in
criminal matters appeal against a Governor's Bench
could lie by way of petition only. 3
Aurangzeb appointed a court c Diwan-e-Maza-
lim' 4 on the model of the Abbaside rulers 5 "to redress
wrongs." It resembled the Court of Crown Cases
reserved in medieval England. Its function was to
admit petitions of Appeal. Sir Jadunath Sarkar
thinks that the Diwan-e-Mazalim was the name of
the court held by Aurangzeb on Wednesday. 6
Aurangzeb took special care to see that his
orders in appeal were conveyed to inferior courts
without the least possible delay. The postal system
was improved, and Captain Hamilton writes that one
could send a letter from the Deccan to Delhi within
eight days, Vol. I, p. 150.
Aurangzeb's keenness as a lawyer led him to the
side of caution. As a Judge he translated the law
of Shara, in the spirit it was meant (pp. 286-287, Mirat
I) (Lanepoole, pp. 98-113). He became lenient in his
sentences. He had started his reign by confirming
the death sentences of his elder brothers on the one
1 Mirat I, p. 258.
* Dow III, p. XXVII.
3 Compare Dow III, p. XXXIII.
4 Sarkar (1935) p. 106. Compare Dow III, p. XXXIII.
6 Compare Ameer Ali; Saracens, p. 422; J. R. A. S. 1911
Sarkar (1935), p. 106.
WORKING OF JUDICIAL MACHINERY 269
hand and forgiving 1 all those who had fought against
him in the war of succession on the other. He
also issued orders that the first offender was to be
treated leniently. If he committed the offence a
second time he was to be put in jail.
"Habs nigah darand ta asar toba zahir shawad."
He would himself not inflict any sentence unless
forced to do so 2 . Khafi Khan 3 also thought that
in spite of his unrivalled abilities it was essential for
him to pass sufficiently severe punishments.
Manucci draws a gruelling picture of the state
of law abiding spirit among his officers (Vol. Ill,
p. 260), when he says:
"The people revere him and hold him in the
greatest respect. Yet in spite of his being himself
imbued with this idea he assumes always great humi-
lity in his attitude. For instance, if he sends orders
to an officer at a distance in regard to any complaint
that has been made of his conduct and then learns
that the said order has passed unheeded and submis-
sion in it has been refused, he betrays no wrath at
such insubordination. All he says is (and that in
the softest voice) that he is only a miserable sinner
that there is no reason for astonishment if his orders
are disregarded since every day those of God Him-
self are neglected and repudiated. He does not for-
get, however, to repeat his orders and adopt every
exact means of getting them executed." While
such attitude of humility would give credit to any
1 Maharaja Jaswant was pardoned twice for his treachery.
2 Alamgir Namah, p. 1078.
8 p. 550, Vol. II.
270 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
judicial temperament, I doubt if it had much to com-
mend itself for its adaptability when the chief judicial
officer of the realm was also the de facto supreme
Executive head of the Government, and on him alone
depended the maintenance of the State at a time when
ideals of self-government were not known. Aurang-
zeb's leniency may have been due to his over realisa-
tion of the responsibilities which a ruler in an Islamic
State bears on his shoulders (Alamgir Namah, pages
1076-1077). It must be said, however, to the credit of
Aurangzeb that he showed an extreme concern for
the enforcement of a regime of law. With the effi-
ciency of a modern secretariat head and with an un-
limited capacity to work he was able to keep the
machinery of law in perfect order within an empire
which any single individual has hardly controlled
so remarkably in the world for a complete half cen-
tury. Aurangzeb's mastery of the details of admi-
nistration and his super-human ability (Dow, Vol. Ill,
p. XXVI) made the whole organisation a personal
triumph for him.
Conditions deteriorated in the time of Aurang-
zeb's successors who were much inferior to him both
in ability and industry. They ceased to administer
justice in person, and people, who had been accus-
tomed to flock to the Emperor's court to get redress,
turned to other quarters. The result was that the
Provincial Governors commenced to arrogate to
themselves powers which were not theirs legitimately
and to interfere in the administration of justice by
trying cases which should have been left to the
Qazis. As Alexander Dow observes, "the Courts of
WORKING OF JUDICIAL MACHINERY 2JI
Justice which the wisdom of the House of Taimut
had established in the cities and various subdivisions
of the Provinces were either annihilated or they lost
their power under the summary despotism of the
revolted Nabobs." Ill, p. CVII.
SUMMARY AND CONCLUSIONS
The superstructure of the Mughal administra-
tion built by Aurangzeb continued, more or less in
its original form, to exist till the death of Muhammad
Shah in 1748. There were after him frequent changes
in the Government which resulted in the weakening
of the whole administrative machine. The people
who, since 1526, had been used to a succession of
strong and able rulers were left to find their own
feet in a whirlpool of rebellious Governors, recalci-
trant Chieftains and the marauding armies of rival
claimants to power.
The medieval State in India as elsewhere through-
out its existence had all the disadvantages of an
autocracy everything was temporary, personal and
had no basic strength. The personal factor in the
administration had become so pronounced that a
slight deviation of the head from the path of duty,
produced concomitant variations in the whole 'trunk'.
If the King was drunk "his Magistrates were seen
drunk in public". 1
The vices of the Ruler became fashionable at
court, from whence the whole body of the people
was soon infected. 2 Barni deplores 3 the decline of
1 Briggs I, p. 274.
2 Compare Briggs I, pp. 388, 467.
SUMMARY AND CONCLUSIONS 273
the institutions built up by Sultan Ala Uddin Khilji
in the reign of his immediate successor, Sultan Qutub
Uddin, who spent most of his time in wine and
In fact, the whole history of medieval India shows
that the administrative machinery functioning in the
reign of one monarch was not necessarily the same in
the reign of the others.
The democratic ideal of government inculcated
in the teachings of Islam was obscured in India.
The very simplicity of despotism, its obvious im-
partiality, "its prompt justice, its immediate severity
against crimes, da2zled the eyes of the superficial
and raised in the minds of the subjects a veneration
little short of idolatry" which might have turned
into real idolatry in the case of the Mughal Sovereigns
if the practice of the Emperor sitting in his "Jha-
rokah" for "Darshan" early in the morning had not
been stopped by Aurangzeb.
Despotism appeared in its most engaging form
under the Imperial house of Babar. According to
Colonel Dow "the uncommon abilities of most of
the Princes with the mild and humane character of
all, rendered Hindustan the most flourishing Empire
in the world during two complete centuries." VoL
III, p. XXIII. The succession of brilliant, efficient,
and able rulers from 1526-1713, which had established
"domestic tranquillity" in the country, resulted, how-
ever, in the people resigning their power of initiative
to some single individual amongst them and always
looking up to that single individual for guidance.
When that guidance was not forthcoming there was
274 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
a collapse. The Mughal Emperors after 1750 could
neither lead their people nor support their Judges,
and the system so elaborately planned by Akbar and
Aurangzeb broke down completely.
Separation of Judicial and 'Executive f unctions
Hitherto the judicial and the executive functions
in the Muslim Indian State had been separate except
that the King or his representative in the Province,
the Governor, combined them in his person. The
lower ranks, that is the Qazis and the executive offi-
cers functioned independently of each other. The
Qazis had no "executive" duties, and, as far as was
possible, the executive officers were not invested
with judicial powers. No titles were conferred on
the Qazis. The same was the practice of the Caliphs
of Islam. "Omar was the first ruler in Islam' 5 says
Ameer Ali "to fix salaries for his Judges and to make
their offices distinct from those of executive officers.
The title of Hakim i.e. ruler was reserved for the Ka-
zis," and according to Von Hammer "the Islamite
administration even in its infancy" proclaimed "in
word and in deed the necessary separation between
judicial and executive power". 1 In the dominions
of H. E. H. the Nizam, where certain Mughal tradi-
tions still survive, the separation of judicial and exe-
cutive functions seems to be exactly on the model
adopted by the Mughal Emperors 2 except that neither
the Subahdar nor H. E. H. hears appeals or tries cases.
Under the Sultans the Qazis were independent
1 Vide Ameer Ali, Saracens, p. 62.
* Compare Dow, HI, p. LVIH.
SUMMARY AND CONCLUSIONS 275
of the Government and were considered to hold
office under the Shara', with which no one, not even
the Sultan, could interfere. Rulers like Muhammad
Tughlaq and Firoz Tughlaq sometimes circumvented
the Judges by investing their Wazirs with powers
to try important cases, 1 but this was not the rule.
When Sultan Mahmud Shah Bahmani (1500) pro-
posed to indulge in the same practice, Qazi Sadr
Uddin Sharif, his Chief Justice, went "on leave" out-
side the Kingdom and refused to resume duties, un-
less the Sultan gave him an undertaking that the
powers of the Qazis would not be taken away in
future (Briggs II, pp. 3 2 *-3 2 5)-
By the time of Akbar (1560) the separation was
in full force. When the Emperor or the Governor
held trials the proceedings in his court were purely
judicial. The Qazi-e-Subah was a member of the
Governor's Bench, and any decision by the Governor
either as a single Judge exercising original jurisdic-
tion or as an appellate court, had to conform to the
legal opinion expressed by the Mufti.
delations between the Qa^is and the 'Executive*.
The relations between the Qazis and the officers
serving in the executive side were on the whole
cordial. Much depended upon the personality of
the ruler. In the reigns of Emperors like Firoz
Tughlaq and Aurangzeb the decrees of the Law
Court were obeyed and the Qazis were held in great
respect. Mirza Kochak, Governor of Lahore, had
1 Ibn Batuta, p. 146, State vs. Khwajah Ahmad Afif,p. 508.
276 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
ordered a search to be made in the house of Qazi
All Akbar of Lahore, who was suspected of murder-
ing two slave girls. He preferred to commit suicide
rather than to obey a summons by Aurangzeb to
explain the killing of the Qazi by the Police in his
attempt to prevent the search (Storia II, p. 254).
No grounds are known for accusing the Qazis
of subservience to the Governors, although instances
have been recorded when they made efforts to please
the Sovereign. Mir Faisullah Anjoo, Chief Justice
of Bahmani Shah Mahmud, who \vas known to
enjoy public confidence and a high reputation for
honesty composed an ode in praise of the
Sultan and was handsomely awarded. Similarly
Qazi Abdul Wahab's acceptance of rewards 1
from Aurangzeb has led some modern writers 2
to think that the Chief Justice possessed no cons-
cience, accepted bribes and managed to remain in
office merely by pleasing the Emperor. This seems
unlikely in view of the other evidence of the standard
of efficiency required by Aurang2cb in every depart-
ment of the administration. 3 It appears from his
Ruqaat 4 (letters) that Aurangzeb held it to be a maxim
that the complaint of a poor citizen against a highly
placed individual was to be given credence 5 (bara-e-
shahzada saza adam tahqiq ast. Waqae, p. 32).
1 Alamgir Namah, p. 844.
2 Sarkar (1935) p. 112.
3 Compare (i) Dow III, pp. XXVI-XXVII (2) Anecdotes
by Sarkar, p. 97.
4 Waqae, pp. 32, 34, 70, 72, 80.
6 Compare Dow III, p. XXXIII. "Their petitions when-
ever they found access to the throne were heard with the atten-
tion which a jealous prince pays to his own power, and there
SUMMARY AND CONCLUSIONS 277
None the less Qazi Abdul Wahab's own son who
became Chief Justice refused to touch such rewards. 1
AH Muhammad Khan quotes a case State vs.
Prince of Gujrat, Mirat I, p. 49, where the son-in-law
of the King was accused of murder and the Qazi who
tried the case, after allowing Qisas, himself took his
judgment to the Sultan for announcement or
Manucci tells us of a Kotwal who arrested him
on a charge of theft and would not accept bail be-
cause of the hostility of the outgoing Governor
(Amin Khan), but became anxious to set him free
when news arrived that Amin Khan's successor
Fidae Khan was his friend (Storia II, p. 198). Simi-
larly the chief Mir Adi of Sultan Sikander Lodi
(1489-1517) kept an ordinary case hanging on in his
Court for two months and on a reprimand from the
Sultan disposed of it the same day. (Kennedy I,
Qa^is and the Ru/er
There are more instances than to the contrary
proving that the subordination of the Qazis to the
King as Chief Judge of the realm did not impair
their independent position in the State, vide Widow
vs. King Ghyas, Stewart, pp. 90-91; Qazi-e-Subah vs.
Governor in Sadiq vs. Shakur, Sarkar V, p. 421 ; State
are many instances in which the Governors of Provinces have
been severely punished for an act of injustice to a poor peasant.
Never to forgive oppressions against the helpless and low was
an established maxim among all the Princes of the house of
1 Compare Sarkar (1935) p. 112.
278 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
vs. Brahman, Stewart, p. 410; State vs. Yaqub and
Nairn, Briggs IV, p. 519; Hamid Uddin vs. Prince
Kam Bux, Khan II, pp. 43 6-43 y 1 .
The order issued by the Emperor Aurangzeb
and referred to by Sarkar directing the Qazis of
Ahmadabad to be present in the Court of the Gover-
nor on Wednesdays was for their sitting on his Bench
as Judges and not for attending him 2 as the executive
head of the Province. No instance has come to my
notice where the Ruler removed any Qazi on the
ground that he gave an inconvenient decision. No
harm was done to the Qazi who declined to favour
Sultan Muhammad Tughlaq in his libel suit against
Shaikhzada Jami, although later on the Sultan executed
the defendant without a trial (Badaoni I, p. 240).
Conversely the removal of Qazi Shamsuddin Mehr,
as mentioned before, was the result of a successful
appeal against his judgment. It seems to me that
religious sentiment was a most potent influence on
public opinion in medieval India and that every
ruler who strove to live up to its standards (impartial
justice being one of the essentials) was supported
by the people. 4 The tribunal of Justice was a popu-
lar forum of appeal to the people to accept the sover-
eignty of a particular aspirant 5 to the throne.
It seems inconceivable that the despotic rulers
1 Also compare Briggs II, pp. 322-325; Barni, p. 580; Mirat
I, p. 248; Al Qaza fil Islam, p. 22.
2 Mirat I, p. 275.
8 Elliot II, pp. 339-340.
4 See State vs. Qazi Jakl Kashani. Elliot III, pp. 144-145.
Compare remarks by Barni, pp. 39-43; pp. 578-580; Shams Sira]
Afif, pp. 505-510.
6 Compare Elliot IV, p. 116.
SUMMARY AND CONCLUSIONS 279
could have ever deliberately perpetrated acts of
injustice upon their subjects by punishing or slighting
upright Judges, if they were at all anxious to main-
tain their position intact. In fact, the downfall of the
Mughal Empire started when the Emperors were no
longer able to uphold individual rights or to do
justice between man and man, and when their subor-
dinates became too powerful as against the decrees
of the courts.
Disintegration of the Mughal "Empire
Aurangzeb had, in the words of that distin-
guished British civil servant, Colonel Dow, left a
completely settled Empire at his death. Its disinteg-
ration commenced in the reign of Muhammad Shah
(1719-1748), who is said to have once thrown an
urgent report of an important conspiracy into a barrel
of wine (in dafter-e-be mani gharq-e-ma-e-nab ula) as
useless bother, and did not recover from the effects
of his orgy till two days after.
The scramble for power that set in in India after
the death of Muhammad Shah in 1748 resulted in
chaos. The regular course of Justice was every-
where suspended, and every man exercised the func-
tions of a Judge who had the power of compelling
others to submit to his decisions. 1 From 1750
A. D. onwards there were five 'puppet* Emperors,
who were quite incapable of exercising the control
necessary to preserve the vast Empire left by Aurang-
1 Compare I. O. L. Records H. Misc. 352, p. 37.
280 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
In the Muslim India which remained, the judi-
ciary became merged in the executive in a manner
always discouraged by Islam and the early Caliphs.
The Faujdar and the Zemindar, whose judicial func-
tions had been limited to what are at present called
'security* cases, were authorised by the Governors
(who had themselves assumed the powers of an
Emperor in their Subahs) to try practically every
kind of case. 1 The seventh report of the Committee
of Secrecy appointed by the House of Commons
shows 2 how corrupt these officers functioning as
Courts became. They invented a variety of new
Exactions from the litigants and established a mode
of compromise for practically all criminal offences.
The Chief Qazi of the Province of Bengal was rele-
gated to an inferior position 3 and in effect ranked no
higher than a dignified Mufti in the court of the Go-
vernor's Daroghah. 4 The result in Bengal was
a deterioration of the whole system. "Abuses"
wrote an English official in 1772 "in the administra-
tion of Justice were to be imputed rather to the
corrupt principle of the Muhammadan and Gentoo
(Hindu) Judges than to any defects in the Law or in
the regulations of the courts" 6 "The Qazi's
1 The universal practice in Northern India of referring
to every kind of Criminal Court procedure as 'faujdari' evidently
dates from those days.
2 Compare Holwell's letter L O. L. Rec. 529, pp. 297, 301,
3 Compare I. O. L. H. Misc. 352, pp. 34, 38.
4 Compare I. O. L. Records. Range A. Vol. 19. Report
of the Committee of Circuit 1772, pp. 371-372.
6 Compare I. O. L. Records. Range A. Vol. 19. Report
of the Committee of Circuit 1772, pp. 371-373.
SUMMARY AND CONCLUSIONS 28 1
courts seemed to be formed on wiser maxims and
even on more enlarged ideas of justice." 1
East India Company as Diwan
Such was the state of affairs when the East India
Company was appointed Diwan of the Subah of
Bengal in 1765 by a Royal Farman. dive, the first
administrator under the Company, met with little
success in his efforts to restore the "old prestige of
Government". His successor, Warren Hastings, rea-
lising the limitations imposed by the Farman on the
Company, felt disinclined to foist "English ideas
on a people who were not used to them." In his
dispatch to the Court of Directors dated 3. XI. 1772
(Home Misc. Records 529, p. 320) he wrote :
"We have endeavoured to adapt our Regulations
to the manners and understandings of the people and
the exigencies of the Country, adhering, as closely as
we are able, to their ancient usages and institutions."
There was no other way possible, as the de jure
Sovereign was still the Mughal Emperor, and the peo-
ple ow r ed allegiance to him, while the East India Com-
pany had limited administrative rights only. 2
The continued corruption of the lower ranks
of judicial officials and the consequent injustices pre-
vailed upon Lord Cornwallis to take upon himself
the responsibility of separating 3 the judicial from the
executive functions in 1793, so far as the territories
1 Compare I. O. L. Records. Range A. Vol. 19. Report
of the Committee of Circuit 1772, pp. 371-373.
2 Compare Anglo -Muhammadan Law by Wilson, pp. 25-26.
Letter of Warren Hastings.
3 Smith, Oxford History of India, pp. 570-571.
282 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
under the management of the East India Company
were concerned. But it seems that the class of offi-
cers recruited for the ideal form of judicial adminis-
tration did not bring any particular credit 1 to the
system. There were other financial difficulties and
the old arrangements were revived in 1835.
Since the assumption of direct responsibility by
the British Crown drastic measures have been taken
to deal with any defect of the judicial system which
has appeared from time to time to hinder the dis-
pensation of justice. No popular grievance what-
soever has been voiced so far as the administration
of justice in modern India is concerned. The
"popular" cabinets themselves, with the excep-
tion of the U. P., have not shown any inclina-
tion to introduce any changes into the present day
organisation of the magistracy and the judiciary.
What the modern system has achieved in India can
be fairly estimated from the following speech deli-
vered by the late Sir Austen Chamberlain while
proposing the toast of the English Bench and
"The longer I live, the more profoundly grate-
ful I am that I was born a citizen of this free country.
We are free people, we govern ourselves. We can
think our own thoughts if we maintain decency and
courtesy we can express them freely. Our liberties
remain and grow stronger as they perish or wither
away elsewhere, and of all the British institutions to
which we owe our liberties there is none to which
1 Compare Smith. Oxford History of India, p. 571.
SUMMARY AND CONCLUSIONS 283
we have a greater debt not even to Parliament itself
than British justice and the British Courts of
(The Times 1-2-1937).
A. The Sultans and the Badshahs of Delhi.
Dow's Translation of Farmans Appointing Qazi
C. Criminal Regulations of Aurangzeb (Br.
Mus. MS. Add. 6580).
D. Letters of Appointment.
1. Farman of Muhammad Shah (1719) con-
firming Shah Muhammad Raza Qazi of Parganah
Jalesar, Sarkar Akbarabad.
2. Farman of Muhammad Shah (1742) appoint-
ing Saiyad Abrarullah Qazi of Parganah Deoband,
3. Farman of Ahmad Shah (ist year of acces-
sion) confirming Qazi Razaullah in his appointment
of Qazi of Parganah Kunwar, Sarkar Shahjahanabad.
4. Farman of Muhammad Adil Shah of Bijapur
1659 A. D. (approx.) appointing Muhammad Ghu-
lam Husain Qazi of Parganah Rewar-Kandah.
Farman of Muhammad Shah (1722) appointing
Saiyad Muhammad Murad Daroghah-e-Adalat Par-
ganah Haveli, Sarkar Sambhal.
Vakalat Namah in favour of Saiyad Mutad bin
Saiyad Yar Muhammad 1735 A. D.
Farman of Ahmad Shah (yth year of accession)
appointing Bahadur Khan as combined Faujdar and
Zemindar of Parganah Tharao, Sarkar Patan.
5. Head Man
Farman of Aurangzeb (1706) appointing Mu-
hammad Turab Chaudhri of Parganah Manoi, Sar-
Farman of Muhammad Shah (1746) appointing
Razaullah Khan Mohtasib of Parganah Soinpat,
E. List of Qazis of Parganah Jais Sarkar Ma-
nakpur. (i 5 65-1 883).
The Sultans Year of Accession
Qutub Uddin Aibek . . . . . . . . 1206
Aram Shah . . . . . . . , . . 1210
Shams Uddin Iltutmish .. .. .. 1211
Rukn Uddin Firoz . . . . . . . . 1236
Sultan Raziah . . . . . . . . . . 1236
Muiz Uddin Bahram . . . . . . . . 1240
Ala Uddin Masud 1242
Nasir Uddin Mahmud . . . . . . 1246
Ghyas Uddin Balban . . 1266
Muiz Uddin Kaiqubad . . . . . . 1287
Jalal Uddin Firoz . . 1290
Rukn Uddin Ibrahim 1296
Ala Uddin Muhammad . . . . . . 1 296
Shihab Uddin Umar 1316
Qutb Uddin Mubarak .. 1316
Nasir Uddin Khusro 1320
Ghyas Uddin Tughlaq . . . . . . . . 1320
Muhammad bin Tughlaq . . . . . . 1325
Firoz Shah .. .. 1351
Ghyas Uddin Tughlaq II 1388
Abu Bakr Tughlaq .. . . . . .. 1389
Nasir Uddin Muhammad . . . . I 39
Sikander . . .. . . .. .. 1394
Mahmud Tughlaq 1394
Nusrat Shah . . . . . . . . . . 1396
Mahmud Tughlaq . . . . . . . . 1399
Daulat Khan Lodi 1414
KhLzr Khan . . . . . . . . . . 1414
Muiz Uddin Mubarak . . . . . . 1421
Muhammad . . . . . . . . . . 1434
Ala Uddin Alam Shah . . . . . . 1444
Bahlol Lodi 1451
Sikandet Lodi 1489
Ibrahim Lodi . . . . . . . . . . 1517
Sher Shah .. .. .. .. .. 1540
Islam Shah . . . . . . . . . . 1545
Babar . . . . . . . . . . . . 1526
Humayun .. .. .. .. .. 153
Humayun .. .. 1555
Jahangir . . . , . . . . . . 1605
288 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Bahadur Shah 1707
Jahandar Shah .. 1712
Farrukh Siyar 1713
Rafiud Darajat .. 1719
Muhammad Shah 1719
Ahmad Shah 1748
Shah Alam II 1759
Akbar II 1806
Bahadur Shah II 1837-1857
Adabul Harb. Br. Mus. MS. Add. 16853.
Adab-e-Alamgiri. Br. Mus. MS. Or. 177.
Akhbar-e-Darbar-e-Mualla. R. A. S. London.
Arzdasht. Br. Mus. MS. Add. 16859.
Baqiatus Salehat. In the author's library.
Basain us Salatin. Br. Mus. MS. Add. 26269.
Chahar Chaman. Br. Mus. MS. Or. 1892.
Collections of Diaries. Diwani Office Hyderabad
Dastural Amal. Br. Mus. MS. Or. 1690.
Dasturul Amal-e-Shahja- Br. Mus. MS. Add. 6588.
Dasturul Amal-e-Aurang- Br. Mus. MS. Add. 6598.
Dasturul Amal-e-Aurang- Br. Mus. MS. Add. 6599.
Dasturul Amal. Br. Mus. MS. Or. 2026.
Dastur. Br. Mus. MS. Add. 6586.
Dasturul Amal. Br. Mus. MS. Or. 1779.
Dasturul Amal Adalatha- MS. 2907 I. O. L.
Dasturul Amal-e-Shahen- Br. Mus. MS. Add. 22831.
Dasturul Quzat. MSS. 1601, 1602 I.O.L.
Fatawa-e-Jahandari. MS. 1149 I. O. L.
290 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Fatawa-e-Qazi Khan. MS. 1643 I- O- L.
Fiqh-e-Firoz Shahi. MS. 2987 I. O. L.
Futuhat-e-Firoz Shahi. MS. Or. 203*9 Br. Mus,
Fuyuzul Qawanin. MS. Lucknow.
Hadiqatus Salatin. Br. Mus. MS. Add. 6542.
Ikhtyar. Br. Mus. MS. 22714.
Insha. Br. Mus. MS. Add. 7689,
Istilahat. Br. Mus. MS. Add. 6603.
Kalimatut Tayyebat. Br. Mus. MS. Add.
Lubbut. Tawarikh-e-Hind. Br. Mus. MS. Add 26251.
Maasir-e-Jahangiri. Br. Mus. Or. 171.
Makatib-e-Allami. Br. Mus. MS. Add. 6548.
Mirat-e-Ahrnadi. Br. Mus. MS. Add. 6580.
Miratul Istilah. Br. Mus. Or. 1813.
Raqaem-e-Keram. MS. K. C. C.
Ruqaat-e-Alamgiri. Br. Mus. MS. Add. 26239.
Ruqaat-e-Alamgiri. MS. 1344, 3301 I. O. L.
Sharhe Adabul Qazi. MS. 1514 I- O. L.
Sharhe Manasib. Br. Mus. MS. Or. 1906.
Sulukul Muluk. Br. Mus. MS. Or. 253.
Sulukus Saltanath. Br. Mus. MS. Or. 254
Tabaqate Nasri. Br. Mus. MS. Or. 18.
Tajul Maasir. MS. K. C. C.
Tarikh-e-Daudi. Br. Mus. MS. Or. 197.
Tarikh-e-Shahjahani. Br. Mus. MS. Or. 174.
Tarikh-e-Sher Shahi. MS. K. C. C.
Zafar Namah Alamgiri. Br. Mus, MS. Or. 1640.
Zakhiratul Muluk. Br. Mus. MS. Add. 7618.
Zakhiratul Muluk. MS. K. C. C.
Zawabit-e-Alamgiri. Br. Mus. MS. Or. 1641.
Abdul Qadir Mulla Al Ba-
Abdur Razaq, Samsam-ud-
Abdus Salaam Nadvi.
Afif, Shams Siraj.
AJi Muhammad Khan.
Amedroz H. F.
Ameer All, S.
Arnold, Sir Thomas.
rikh Bib. Ind.
Maasirul Umara Bib.
Al Qaza fil Islam, Azam-
1 . Ain-e-Akbari Bib. Ind.
Tarikh-e-Gujrat Ed. Sir
1. Kitabul Kharaj.
2. Kitab Adabul Qazi.
Tarikh-e-Firoz Shahi Bib.
Tarikhul Hind Tr. by
On Mazalim Jurisdic-
tion J. R. A. S. 1911.
1. A Short History of
2. Spirit of Islam.
3. Mahomedan Law.
1. Khazain ul Futuh.
2. Qeran us Saadaen.
1. Preaching of Islam.
2. Legacy of Islam.
3. Islamic Faith.
i. Digest of Moohum-
292 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Batni, Zia Uddin.
Bashit Uddin K. B.
Bhara Mai Rae.
Browne, E. G.
Cambridge History of
India Vols. I, ni-IV.
Edwardes and Garett.
Elliot, Sir Henry.
Encyclopaedia of Islam
Faruki, Zahir Uddin.
2. Moohummudan Law
in Ancient India.
History of Jehangir.
History of India.
Rise of the Mahomedan
Power in India.
Literary History of Per-
Hindu Courts T. R. A. S.
n, p. 166.
Nabobs of Madras.
History of Hindustan.
India Past and Present.
Mughal Rule in India.
History of India 8 vols.
History of India 1857-
History of India.
Aurangzeb and his
Foster, Si William
Gibb, H. A. R.
Grady, S. G.
Jayaswal, K. P.
Jones, Sir William.
1. India Office Records
2. Embassy of Sir Tho-
Travels Tr. Hakluyt
Ibn Batuta (Translation).
A History of Hindu
Institutes of Hindu Law.
Governors and Judges
of Egypt Gibb Mem.
'Hedaya' edited by Grady.
A New Account of East
Kitabul Ikhtyar, Calcutta.
Administration of Justice
during the Muslim Rule
Rahila, Travels Tr. by
The Central Structure
of the Mughal Em-
A Basic History of Hin-
(Translation of) Manu
294 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
Khuda Bux, S.
Lahori, A. H.
Maine, Sir Henry.
Markby, Sir William.
McDonald, D. B.
Macnaghten, Sir William
Mohammadullah S. Jung
Moreland, W. H.
Alamgir Namah Bib. Ind.
History of the Great
Muntakhabat ul Lubab
Orient under the Ca-
Badshah Namah Bib. Ind.
Aurangzeb, Rulers of
Storia du Mogor R.A.S.
Travels Tr. Hakluyt
Diary of, edited by Sir
Shafaat Ahmad Khan.
History, 2 Vols.
Hindu and Mahomedan
Principles and Precedents
of Mahomedan Law.
Tabaqate Nasiri Tr. by
Raverty. Bib. Ind.
Administration of Justice
of Muslim Law.
Commentary Tr. by Hoy-
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1. Akbar to Aurangzeb
2. India at the death of
Nawab Mirza Yar Jung.
Nicholson, R. A.
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Rahim, Sir Abdur.
Roe, Sir Thomas.
Ross, Sir Denison.
Saqi, Mustaid Khan.
Sarkar, Sir Jadunath.
Saxena, B. P.
Hind Aurangzeb ke Ahed
Mahmud of Ghazna.
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by H. G. Rawlinson.
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1. Tr. by Moulvie Mo-
2. Tr. by A. Yusuf Ali
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Maasir-e-Alamgiri Bib. Ind.
1 . History of Aurangzeb.
2. Anecdotes of Au-
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296 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
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"THE TENOR OF A QAZI'S FIRMAN/'
"The order that issues forth like fate.
"As in the number of our auspicious designs it
is proper that the people of God should be conducted
from the dark and narrow paths of error into the
direct road of truth and reason, which intention
can only be accomplished, when an upright and
devout Judge vested with his powers shall be estab-
lished in every city and country to unfold the door of
virtue and justice before the faces of wicked and
"The laudable qualifications being found in the
dispositions of the learned in the laws, the extensive
in knowledge, Eas-ul-Dien Mohommed, we have on
that account, favoured him with the high and res-
pectable office of Qazi of the city of Cabul, command-
ing him. To give the necessary applications on that
duty To observe the established course of the noble
law in his enquiries To pass judgment in all dis-
putes, and arbitrations according to the same noble
law, nor permit the smallest differences in the case
to pass unobserved To regulate his proceedings
in such a clear and distinct manner, as if to-morrow
were the day of examination on which every action
must answer for itself.
"Be it known to all rulers, and officers, and
people, public and private, that the aforesaid learned in
the law is confirmed Qazi of the above mentioned
298 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA
city of Cabul; that they shall pay him all due respect
and revere his decisions totally and particularly,
paying all due obedience to his orders, by such offi-
cers as he shall appoint for executing the law; receiv-
ing such of his words as are agreeable to the noble
law into the ears of their understanding. In this
business proceed according to order, and let none
Dow III, pp. 411-412.
"TENOR OF A CUTWAL'S FIRMAN."
"As a particular account of the capacity, ex-
perience and bravery of Mohommed Bakar hath
reached our high and sacred presence, we have of our
royal favour confirmed and appointed him Cotwal
of the city of Dowlatabad. He is commanded to
make the practice of fidelity and truth his study, that
he may be able to execute the duties of his office
with propriety. He is to take care that the guards
and watches of that city be strictly kept, that the
inhabitants may be secured and protected in their
persons and property, that they may bless our happy
reign and pray for its duration.
"He is to use his utmost endeavours that no
thieves, gamblers, or other miscreants shall make
their appearance, and that no nuisances shall be per-
mitted to remain in the streets or before the door
of any person. That no insidious old women, pimps
or jugglers, who lead the wives and daughters of
honest men into the ways of evil be tolerated, but
have their hands shortened from such iniquitous
practices. That he will as much as possible prevent
TENOR OF A CUTWAI/S FIRMAN 299
forestalling of grain, provisions, and other things,
that the markets may be kept low, nor the people
suffer from any combinations amongst the Bunias.
What events may arise of a particular nature, he is to
send a true and faithful account of them to the pre-
"Be it known to all Mutasaddies and officers, and
all men public and private of the above mentioned
city, that the aforesaid Mohommed Bakar is con-
firmed and appointed Cotwal and, that all quarrels
and vexatious disputes which may arise in that city
shall be referred to his decision, and that they shall
submit to his arbitration according to the established
customs of the empire. Let this business be pro-
ceeded on according to order, and let none oppose
DOW in, pp. 412-413.
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APPENDIX D.I. (3)
APPENDIX D.I. (2)
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APPENDIX C (Br. Mus. Ms Add. 6580)
J^Y^^I/T'^V'V^^r*^^ 4r^ ^ ; \
/J L 'y' ^ /^ jX" &tj*#j>* & . * ^V' i ci '-' >
Abbaside, influence of institu-
Abbaside, Caliphs, 185.
Adabul Harb, 39.
Adalat Khanah, 250.
Adalatul Aliah, 203.
Administration, general, 102-104
Admissions, 216, 217, 218.
Adultery, prosecution in, 229,
232, 233, 235.
Ahkamus Sultanyah, 38.
Akbar, 160, 180, 186, 195, 201.
Akbar Namah, 45.
Al Mawardi, 38.
Alamgir Namah, 41, 45.
Alexander Dow, 32, 53.
Ali Shahab Hamdani, 39.
Amalguzar, 166, 171.
Amils, 121, 130.
Amins, 157, 167, 218.
Amin Karkuns, 171.
Appeals, 203, 204, 205, 207.
abatement of, 207.
on interlocutory points, 34.
powers of courts in, 205.
procedure in, 200.
second Appeals, 206.
Appellate court, powers of, 205.
Appointment of Qazis, 81.
Aurangzeb, 34, 43, 44.
Legal Reforms of,
Authority in deciding cases, 70-
Bahadur Shah Namah, 163, 191.
Bail, 208, 209, 210.
Baqiatus Salehat, 37.
Bar Associations, 191, 192.
Bernier, 50, 51.
Brahman or Shastri, 60, 61.
Bribes, 243, 263.
Burhanuddin Ali bin Ali B.
Canon Law, 227, 234.
Cases, Civil Procedure, 181, 182,
COSt Of, 199, 200.
compounding, 196, 197.
records of, 186.
reports of, 188-189.
transfer of, 180-181.
Chauth, 243, 244.
Chief Justice, 107-116, 143-146.
influence of 1 09- 1 1 1 .
of Sultan of Delhi, 114,
other functions of, 109.
removal of, 1 1 1, 112.
salary of, in, 112.
selection of, 107, 108.
staff attached to the court
of, 115, 116.
Commentaries by Muslim Ju-
Compounding offences, 196-197.
Conditions in Medieval India, 5 7
Confession, 217, 218.
Courts, at the Centre (during
the Sultanate), 104-116.
Court, contempt of, 230.
at the district head-
fee, 197, 198, 199.
hours, 251, 252.
5 , house, 250.
at Parganah head-quar-
ters, 123-124, 167, 170.
personal enquiry, 184.
at Provincial head-quar-
Courts supervision over, 263.
in army, 125-126.
in villages, 124-125.
Courts at the Centre (under the
Courts at the district head-
quarters, 139, 152, 1 66.
Courts at the Parganah head-
Courts at the Provincial head-
quarters, 116 138-139, 148,
Courts in the Villages, 140.
Courts, grades of, 170-175.
Courts, Honorary, 168.
Cow sacrifices, 239.
Dad-bak, 116, 119, 120, 121, 160,
Daroghae Adalat, 120, 151, 152,
Adalatul Aliah, 174.
Adalat Diwani, 174.
Darul Adi, 250.
Darul Harb, 227.
Darul Qaza, 250.
Dasturul Amal, 195.
DasturulAmal Adalathae Ta'l-
Dasturul Amal Alamgiri, 41, 44.
Dasturul Amal Shahenshi, 44.
Decrees, execution of, 199, 200.
Department of Justice, 104.
Disposal of business by Courts,
Diwan, 171, 172, 174.
Diwan e Ala, 148.
Diwan e Mazalim, 268.
Diwan e Subah, 116, 120, 151,
East India Company, 193, 195,
Emergency powers, 227.
.Emperor's Court, 142, 143.
Evidence, circumstantial, 215.
on Commission, 220.
direct, 214, 215.
documentary, 2 1 6.
recording of, 219.
rules of, 212, 222.
Executive Officers, Liability of,
Extenuating circumstances, 234,
Fakhruddin Mudabbir, 39.
Farameenus Salateen, 37.
Farmans, 72, 73.
Fatawa e Alamgiri
completion of, 41, 42.
Faujdars, 121, 123, 164-165, 167,
171, 173, 174, 179, 183, 194,
200, 209, 214, 245.
Fazl bin Rozbahan Isfahan!, 38.
Fiqh e Firoz Shahi, 40, 42.
Foreign travellers, 50.
Fuyuzul Qawanin, 46.
Gao Takyah, 250.
Governors, 117, 118.
Ghulam Husain, 49.
Hanafi Law, preponderance of,
Hazaqat Khan, 52.
various names of,
Hindu and Muslim systems
Hindu Judicial administration,
Hirasat, see Arrest, 208.
Huquq Ullah, 223, 226.
Ibn Batuta, 47.
Ibn Khaldun, 39.
Imad Uddin Muhd. bin Qasim,
Imprisonment, Civil, 210.
Independence of Law Courts, 68-
Influence of Abbaside institu-
Integrity, of Judge, 262.
Interlocutory points, Appeals
on., 34, 205.
See Admission also
Islamic Law, its introduction in
Itteham-e Zina, 224.
Jails, 225, 229, 247, 248.
Jahangir, 184, 201, 207, 217.
Jam e-us Saghir, 63,
Jirah (Cross-Examination), 219.
John Marshall, 52.
Judge-made Law, 28.
Judicial and Executive, separa-
tion of, 247.
Judicial administration in Medie-
val India, its study, 26.
Judicial administration, similari-
ty in Hindu and Muslim sys-
tems, 63, 64.
Judicial administration, system
under the Sultans, 86, 132.
Judicial administration, its fea-
Judicial administration, system
under the Mughals, 133-175.
Justice, conception of, in Mus-
lim states, 65.
Justice, responsibility to God in,
Kalimat ut Tayyebat, 46.
Karori, 168, 171.
Katibs, 157, 219.
Kitabul Hakam, 185.
King's original Jurisdiction, 80.
King's position, 78.
Kitab e Adabul Qazi, 40.
Kitabul Ikhtyar, 52.
Kitabul Khiraj, 39.
Kitab us Sunan, 63.
Kotwals, 121, 123, 124.
judicial function of,
i6 5 .
Kotwals, Mannucci on, 165.
Dow on, 165, 166, 168,
173, 182, 194, 200, 201, 202,
209, 241, 247, 248, 263, 267.
Kotwals, duties of, 241, 242,
Kotwal e Parganah, 171.
Kotwal e Shaher, 171.
Khufyah Nigars, 263.
Law, classification of, 71.
courts, their independence
in Muslim States, 68-70.
Law, Judge-made, 28.
notification of, 76.
rigour of, 87.
Law, respect for, 100.
Legal learning, monopoly of
Brahmans, 60, 61.
Legal reforms of Aurangzeb,
Limitation Law of, 195.
Maasir Alamgiri, 43-48.
Ul Um'ra, 50.
Majlis e Qazi, 250,
Mahekmae Qazi, 104.
Manucci, 50, 51, 52.
Manrique, 50, 52.
Manu Samhita, 63.
Masnad e Qazi, 251.
Medieval India, conditions in,
Medieval State, its character, 61.
Mir Imarat, 265.
Mir Adi, 41, 148, 158, 162, 251.
Mirat e Ahmadi, 43, 44, 49.
Mohafiz Khanah, 35.
Mohtasib, 76, 115-116, 119,
147, 148, 163, 170, 182, 183,
Mohtasib e Baldah, 163.
Mohtasib e Parganah, 167.
Muchalka Nawis, 158.
Mughals, judicial system under
Mufti, 115, 119, 147, 163, 167,
172, 174, 178, 188, 280.
appointment of, 163, 167.
Munsif e Munsifan, 131.
Murafeah e Saniah, 206.
Muslim Law, 27, 28.
Muslim constitutional law,
writers on, 26.
Muslim institutions. Its intro-
duction in India, 2 5 .
Nazim e Subah, 172, 174.
Nizam Ul Mulk Tusi, 38.
Nizam, Shaikh, 4, 42.
Non-Muslims, rights of, 90-94.
Ordeal, trial by, 194.
Original authorities, 37.
Original jurisdiction of King,
Panchayets, 62, 63, 125, 130,
168, 169, 170.
Metcalfe on, 168.
Pandits (Shastri), 163.
Pauper suits, 192.
Peshkars, 156, 157.
Police, 289, 243, 244.
Position of women, 94.
Prerogative of mercy, 79-80.
Procedure in courts, 176-211.
,, in Company's Courts,
Procedure, in prosecution in
general by State, 229.
Preventive measures, 238-239.
Prison system, 247.
Punishment, for violation of
right in general, 223.
Qanun e Urf, 73, 74.
Qanun e Shahi, 72, 73.
Qarinah (evidence), 215.
Qanungoe, 171, 173.
Qataut turq, 234.
Qazi, 41, 120, 121, 122, 173-176,
178, 180, 184, 188, 192-198,
203, 207, 2IO, 211, 2l8, 220.
Qazi e Askar, 125, 126, 147.
Office, 87, 116, 125-126.
e Parganah, 123-124, 166.
e Sarkar, 121, 152, 156,
Qazi, e Subah, 118-119, 150-
Qazi, distinguished from Mir
Qazi, general functions of,
Qazi, qualifications of, 82-84.
Qazi Minhaj Us Siraj Jurjani,
Qaziul Quzat, 109-113, 143, 146,
172, 176, 177, 203, 205.
Qaziul Quzat, power of appoint-
Qaziul Quzat, Judicial Officers,
Qisas, 196, 201, 226.
Qutub Uddin Aibak, founder of
Muslim administration, 25.
Raziah Sultan, 209, 214.
Record Room, Register, 34-35.
Reference, Revision, 205, 207.
Reforms of Sher Shah, 128-132.
Remand of cases, 205.
Remand, to custody, 266.
Res Judicata, 219.
Respect for law, 100.
Responsibility to God, 67.
Rioting, prosecution for, 229,
Rights of non-believers, 70.
Rigour of the law, 87.
Rulers and Law Courts, 68.
Sadr, duties of, 164.
e Subah, 120.
Sadrus Sudur, 164, 167, 178,
Sahibul Majlis, 217, 157.
Sahih Muslim, 63.
Saqi Mustaid Khan, 48.
Sawaneh Nigar, 265.
Security (See 'Bail), 208, 210.
Seir Ul Mutakhirin, 49.
Sentence of death, 202, 233.
commutation of, 202.
,, enhancement to, 202,
Separation of Judicial and Exe-
cutive functions, (See Judiciary
Shahjahan, justice of, 44, 48,
162, 180, 191, 192, 201, 214,
Shaikh, Nizam, (See Ni%am)>
Shara' adherence to, 98-100.
Sher Shah's reforms, 128, 132.
conception of jus-
tice, 65, 67, 193.
Shiqahdars, 44, 124, 168, 244.
Sikander Lodi, justice of, 160.
Sir Thomas Roe, 51.
Slaughter of cattle, 240.
Slave dynasty, founder of, 57.
Sources of information, 36.
Sovereignty, meaning of, 65.
Spelling, note on, 16.
State, suit against, 193.
State versus the subject, 88-89.
Subut e Sharai, 266.
Sultan, 21, 101.
Sultanate, chief features of,
Sulukul Muluk, 38.
Sulukul Saltanath, 38.
Supervision, by higher courts,
Tabqat e Akbari, 47.
Tabqat e Nasiri, 45, 47.
Tajul Maasir, 44.
Tajwiz e Sani, 203.
Tarikh e Ferishtah, 49.
e Firoz Shahi, 47.
,, ul Hind, 50.
Terry Edward, 51.
Thanadar, 244, 248.
Theft, 227, 229, 235, 238.
Trial of cases by Hindus, 59-60.
Treason, 233, 235, 236, 247.
Tuhfae Akbar Shahi, 47.
Turkish Empire, allegiance to,
Tuzuk e Jahangiri, 41.
Ulama, functions of, 179. 195.
Usul Ul Usul, 77.
Vakil, 183, 189-192, 267,
,, appointment of, 163.
,, duties of, 163, 164, 218.
fee of, 163, 191.
e-Sharai, (See Vakil e
Sarkar), 163, 164.
Vakil e Mutlaq, 192.
us Saltanat, 192.
Village assembly (See Panchayets),
Waqa e Nigars, 166, 251, 263.
Waqa e Alamgir, 45, 46.
Waqa e Nawis, or Akhbar
Nawis, 1 66, 245.
Warren Hastings, 32, 40.
Watch & ward, 245.
Witness, competency of, 213,
Witness, women as, 214.
Women, position of, 94.
Yaqub Muzaffar Kirani, 40.
Zamanat (See Bail), 208.
Zamindar, 169, 173, 174.
Zia Uddin Barni, 39, 47.
Zakhiratul Muluk, 39.